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This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
NORTH CAROLINA
REGISTER
VOLUME 21 ● ISSUE 06 ● Pages 462 - 546
September 15, 2006
I. EXECUTIVE ORDERS
Executive Order No. 105.....................................................................................462
II. IN ADDITION
Voting Rights Letter............................................................................................463
Notice of Intent to Issue State General NPDES for Animal Operations .............464 – 465
Notice of Verbatim Adoption of Federal Standards............................................466
III. PROPOSED RULES
Environment and Natural Resources, Department of
Environmental Management Commission.......................................................476 – 484
Insurance, Department of
Department ......................................................................................................467 – 469
Justice, Department of
Private Protective Services Board ...................................................................470
Labor, Department of
Labor/Wage and Hour Bureau.........................................................................471 – 476
Occupational Licensing Boards and Commissions
Real Estate Appraisal Board............................................................................486 – 496
Public Education, Department of
State Board of Education.................................................................................484 – 486
IV. RULES REVIEW COMMISSION..................................................................497 – 509
V. CONTESTED CASE DECISIONS
Index to ALJ Decisions.......................................................................................510 – 513
Text of Selected Decisions
06 DOJ 0228....................................................................................................514 – 518
05 EHR 2120 ...................................................................................................519 – 523
06 INS 0013.....................................................................................................524 – 526
05 OSP 1012....................................................................................................527 – 535
05 OSP 1771....................................................................................................536 – 546
PUBLISHED BY
The Office of Administrative Hearings
Rules Division
6714 Mail Service Center
Raleigh, NC 27699-6714
Telephone (919) 733-2678
Fax (919) 733-3462
Julian Mann, III, Director
Camille Winston, Deputy Director
Molly Masich, Director of APA Services
Dana Sholes, Publications Coordinator
Julie Edwards, Editorial Assistant
Felicia Williams, Editorial Assistant
Lisa Johnson, RRC Admin. Assistant
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
Contact List for Rulemaking Questions or Concerns
For questions or concerns regarding the Administrative Procedure Act or any of its components, consult with the
agencies below. The bolded headings are typical issues which the given agency can address, but are not inclusive.
Rule Notices, Filings, Register, Deadlines, Copies of Proposed Rules, etc.
Office of Administrative Hearings
Rules Division
Capehart-Crocker House (919) 733-2678
424 North Blount Street (919) 733-3462 FAX
Raleigh, North Carolina 27601-2817
contact: Molly Masich, Director APA Services molly.masich@ncmail.net (919) 733-3367
Dana Sholes, Publications Coordinator dana.sholes@ncmail.net (919) 733-2679
Julie Edwards, Editorial Assistant julie.edwards@ncmail.net (919) 733-2696
Felicia Williams, Editorial Assistant felicia.williams@ncmail.net (919) 733-3361
Rule Review and Legal Issues
Rules Review Commission
1307 Glenwood Ave., Suite 159 (919) 733-2721
Raleigh, North Carolina 27605 (919) 733-9415 FAX
contact: Joe DeLuca Jr., Staff Director Counsel joe.deluca@ncmail.net
Bobby Bryan, Staff Attorney bobby.bryan@ncmail.net
Lisa Johnson, Administrative Assistant lisa.johnson@ncmail.net
Fiscal Notes & Economic Analysis
Office of State Budget and Management
116 West Jones Street (919) 733-7061
Raleigh, North Carolina 27603-8005 (919) 733-0640 FAX
contact: Nathan Knuffman nathan.knuffman@ncmail.net
Governor’s Review
Reuben Young reuben.young@ncmail.net
Legal Counsel to the Governor (919) 733-5811
116 West Jones Street(919) 733-5811
Raleigh, North Carolina 27603
Legislative Process Concerning Rule-making
Joint Legislative Administrative Procedure Oversight Committee
545 Legislative Office Building
300 North Salisbury Street (919) 733-2578
Raleigh, North Carolina 27611 (919) 715-5460 FAX
contact: Karen Cochrane-Brown, Staff Attorney karenc@ncleg.net
Jeff Hudson, Staff Attorney jeffreyh@ncleg.net
County and Municipality Government Questions or Notification
NC Association of County Commissioners
215 North Dawson Street (919) 715-2893
Raleigh, North Carolina 27603
contact: Jim Blackburn or Rebecca Troutman jim.blackburn@ncacc.org
Rebecca Troutman rebecca.troutman@ncacc.org
NC League of Municipalities (919) 715-4000
215 North Dawson Street
Raleigh, North Carolina 27603
contact: Anita Watkins awatkins@nclm.org
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
NORTH CAROLINA REGISTER
Publication Schedule for January 2006 – December 2006
FILING DEADLINES NOTICE OF TEXT PERMANENT RULE TEMPORARY
RULES
Volume &
issue
number
Issue date Last day
for filing
Earliest date for
public hearing
End of required
comment
period
Deadline to submit
to RRC
for review at
next meeting
Earliest Eff.
Date of
Permanent Rule
Delayed Eff. Date of
Permanent Rule
(first legislative
day of the next
regular session)
270th day from publication
in the Register
20:13 01/03/06 12/08/05 01/18/06 03/06/06 03/20/06 05/01/06 05/09/06 09/30/06
20:14 01/17/06 12/21/05 02/01/06 03/20/06 04/20/06 06/01/06 01/07 10/14/06
20:15 02/01/06 01/10/06 02/16/06 04/03/06 04/20/06 06/01/06 01/07 10/29/06
20:16 02/15/06 01/25/06 03/02/06 04/17/06 04/20/06 06/01/06 01/07 11/12/06
20:17 03/01/06 02/08/06 03/16/06 05/01/06 05/22/06 07/01/06 01/07 11/26/06
20:18 03/15/06 02/22/06 03/30/06 05/15/06 05/22/06 07/01/06 01/07 12/10/06
20:19 04/03/06 03/13/06 04/18/06 06/02/06 06/20/06 08/01/06 01/07 12/29/06
20:20 04/17/06 03/24/06 05/02/06 06/16/06 06/20/06 08/01/06 01/07 01/12/07
20:21 05/01/06 04/07/06 05/16/06 06/30/06 07/20/06 09/01/06 01/07 01/26/07
20:22 05/15/06 04/24/06 05/30/06 07/14/06 07/20/06 09/01/06 01/07 02/09/07
20:23 06/01/06 05/10/06 06/16/06 07/31/06 08/21/06 10/01/06 01/07 02/26/07
20:24 06/15/06 05/24/06 06/30/06 08/14/06 08/21/06 10/01/06 01/07 03/12/07
21:01 07/03/06 06/12/06 07/18/06 09/01/06 09/20/06 11/01/06 01/07 03/30/07
21:02 07/17/06 06/23/06 08/01/06 09/15/06 09/20/06 11/01/06 01/07 04/13/07
21:03 08/01/06 07/11/06 08/16/06 10/02/06 10/20/06 12/01/06 01/07 04/28/07
21:04 08/15/06 07/25/06 08/30/06 10/16/06 10/20/06 12/01/06 01/07 05/12/07
21:05 09/01/06 08/11/06 09/16/06 10/31/06 11/20/06 01/01/07 01/07 05/29/07
21:06 09/15/06 08/24/06 09/30/06 11/14/06 11/20/06 01/01/07 01/07 06/12/07
21:07 10/02/06 09/11/06 10/17/06 12/01/06 12/20/06 02/01/07 05/08 06/29/07
21:08 10/16/06 09/25/06 10/31/06 12/15/06 12/20/06 02/01/07 05/08 07/13/07
21:09 11/01/06 10/11/06 11/16/06 01/01/07 01/22/07 03/01/07 05/08 07/29/07
21:10 11/15/06 10/24/06 11/30/06 01/15/07 01/22/07 03/01/07 05/08 08/12/07
21:11 12/01/06 11/07/06 12/16/06 01/30/07 02/20/07 04/01/07 05/08 08/28/07
21:12 12/15/06 11/22/06 12/30/06 02/13/07 02/20/07 04/01/07 05/08 09/11/07
EXPLANATION OF THE PUBLICATION SCHEDULE
This Publication Schedule is prepared by the Office of Administrative Hearings as a public service and the computation of time periods are not to be deemed binding or controlling.
Time is computed according to 26 NCAC 2C .0302 and the Rules of Civil Procedure, Rule 6.
GENERAL
The North Carolina Register shall be published twice
a month and contains the following information
submitted for publication by a state agency:
(1) temporary rules;
(2) notices of rule-making proceedings;
(3) text of proposed rules;
(4) text of permanent rules approved by the Rules
Review Commission;
(5) notices of receipt of a petition for municipal
incorporation, as required by G.S. 120-165;
(6) Executive Orders of the Governor;
(7) final decision letters from the U.S. Attorney
General concerning changes in laws affecting
voting in a jurisdiction subject of Section 5 of
the Voting Rights Act of 1965, as required by
G.S. 120-30.9H;
(8) orders of the Tax Review Board issued under
G.S. 105-241.2; and
(9) other information the Codifier of Rules
determines to be helpful to the public.
COMPUTING TIME: In computing time in the
schedule, the day of publication of the North Carolina
Register is not included. The last day of the period so
computed is included, unless it is a Saturday, Sunday,
or State holiday, in which event the period runs until
the preceding day which is not a Saturday, Sunday, or
State holiday.
FILING DEADLINES
ISSUE DATE: The Register is published on the first
and fifteen of each month if the first or fifteenth of
the month is not a Saturday, Sunday, or State holiday
for employees mandated by the State Personnel
Commission. If the first or fifteenth of any month is
a Saturday, Sunday, or a holiday for State employees,
the North Carolina Register issue for that day will be
published on the day of that month after the first or
fifteenth that is not a Saturday, Sunday, or holiday for
State employees.
LAST DAY FOR FILING: The last day for filing for any
issue is 15 days before the issue date excluding
Saturdays, Sundays, and holidays for State
employees.
NOTICE OF TEXT
EARLIEST DATE FOR PUBLIC HEARING: The hearing
date shall be at least 15 days after the date a notice of
the hearing is published.
END OF REQUIRED COMMENT PERIOD
An agency shall accept comments on the text of a
proposed rule for at least 60 days after the text is
published or until the date of any public hearings held
on the proposed rule, whichever is longer.
DEADLINE TO SUBMIT TO THE RULES REVIEW
COMMISSION: The Commission shall review a rule
submitted to it on or before the twentieth of a month
by the last day of the next month.
FIRST LEGISLATIVE DAY OF THE NEXT REGULAR
SESSION OF THE GENERAL ASSEMBLY: This date is
the first legislative day of the next regular session of
the General Assembly following approval of the rule
by the Rules Review Commission. See G.S. 150B-
21.3, Effective date of rules.
EXECUTIVE ORDERS
21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
462
EXECUTIVE ORDER NO. 105
TO FACILITATE GOVERNMENT EMPLOYEE ACCESS
WHEREAS, all citizens have the right under both the U.S. Constitution and the Constitution of North Carolina to assemble
peaceably, to speak freely, and to petition their government, either individually or through their chosen representatives; and,
WHEREAS, the public interest in efficient and informed state government is served by consultation with persons affected by
those functions, including state employees, and
WHEREAS, the public interest is served by ensuring reasonable access for members of employee organizations to their
chosen representatives and by providing a fair opportunity for employees to choose their representatives.
NOW, THEREFORE, by the power vested in me as Governor by the Constitution and laws of the State of North Carolina,
IT IS ORDERED:
(1) That all state institutions, departments, bureaus, agencies, or commissions subject to the authority of the Governor
shall permit reasonable access to its facilities for the purposes of membership recruitment and consultation with
representatives of a domiciled employees' association that has at least 2,000 members in the state, 500 of whom are
employees of the State, a political subdivision of the State, or are public school employees;
(2) That reasonable access shall include requirements that the employee association submit its request for use of state
facilities in a timely manner, that requests for use of the same facility be limited to a reasonable number of times
each year, that public health and safety not be jeopardized, and that the access be held to the extent possible at the
beginning or end of the workday or shift changes or at the lunch hour;
(3) That representatives of such a domiciled employees' association, who are state employees, shall meet annually with
representatives of the Governor regarding issues of mutual concern prior to the annual convening of the General
Assembly;
(4) That any such domiciled employees' association desiring to be included by the provisions of this Order provide to
the representatives of the Governor evidence that it meets all of the criteria under this Order; and
(5) That the provisions of this Order shall not diminish or infringe upon any rights, responsibilities, powers, or duties
conferred upon any entity by the Constitution of the State of North Carolina or the North Carolina General Statutes.
The Board of Governors of the University of North Carolina System, the State Board of Community Colleges, local boards of
education, and each of heads of the Council of State agencies are encouraged and invited to participate in this Executive Order.
This Executive Order shall take effect immediately and remain in effect until rescinded.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the Great Seal of the State of North Carolina at the
Capitol in the City of Raleigh, this eighteenth day of August in the year of our Lord two thousand and six, and of the Independence of
the United States of America the two hundred and thirtieth.
__________________________________________
Michael F. Easley
Governor
ATTEST:
__________________________________________
Elaine F. Marshall
Secretary of State
IN ADDITION
21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
463
Note from the Codifier: This Section contains public notices that are required to be published in the Register or have been
approved by the Codifier of Rules for publication.
U.S. Department of Justice
Civil Rights Division
JKT:MSR:SMC:jdh Voting Section – NWB.
DJ 166-012-3 950 Pennsylvania Ave., NW
2006-5391 Washington, D.C. 20530
August 10, 2006
Karen M. McDonald, Esq.
City Attorney
P.O. Box 1513
Fayetteville, NC 28302-1513
Dear Ms. McDonald:
This refers to the increase in compensation for the offices of mayor, mayor pro tem and city council, for the City of
Fayetteville in Cumberland County, North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act,
42 U.S.C. 1973c. We received your submission on August 2, 2006.
The Attorney General does not interpose any objection to the specified changes. However, we note that Section 5 expressly
provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of the changes.
In addition, as authorized by Section 5, we reserve the right to reexamine this submission if additional information that would
otherwise require an objection comes to our attention during the reminder of the sixty-day review period. Procedures for the
Administration of Section 5 (28 C.F.R. 51.41 and 51.43).
Sincerely,
John Tanner
Chief, Voting Section
IN ADDITION
21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
464
NOTICE OF PUBLIC MEETING
TO BE HELD BY
THE NORTH CAROLINA ENVIRONMENTAL MANAGEMENT COMMISSION
ON INTENT TO ISSUE NPDES GENERAL PERMITS FOR ANIMAL OPERATIONS
SUBJECT: Public meetings have been scheduled concerning the issuance of animal waste NPDES general permits for the
following types of animal operations:
NPDES General Permit NCA200000 - Swine Operations
NPDES General Permit NCA300000 - Cattle and Dairy Operations NPDES General Permit NCA400000 -
Poultry Operations
PURPOSE: On the basis of preliminary staff review and application of Article 21 of Chapter 143, General Statutes of North
Carolina, and other lawful standards and regulations, the North Carolina Environmental Management Commission
proposes to issue NPDES general permits for animal waste operations subject to specific limitations and special
conditions. The Director of the Division of Water Quality pursuant to NCGS 143-215.4(b)(1) and (2) and
Regulation 15A NCAC 2H, Section .0127 has determined that it is in the public’s interest that meetings be held to
receive all pertinent public comment on whether to issue the draft permits.
All information received by October 9, 2006 will be taken into consideration in finalizing the permitting decisions.
Written comments may be submitted to the address in the Information section listed below.
MEETINGS: The meetings will be conducted in the following manner:
1. Explanation of the NC Environmental Management Commission's Permit Procedure and the proposed
permit conditions by the Division of Water Quality staff;
2. Public Comment - The public meetings are a forum for obtaining water quality information that was either
overlooked or unavailable to the Division at the time the permits were drafted. INFORMATION
PRESENTED SHOULD SPECIFICALLY ADDRESS ISSUES RELATED TO WATER QUALITY
IMPACTS RESULTING FROM WASTE MANAGEMENT. Comments, statements, data and other
information may be submitted in writing or may be presented orally at the meeting. Persons desiring to
speak will indicate this intent at the time of registration at the meeting. So that all persons desiring to speak
may do so, lengthy statements may be limited at the discretion of the meeting officer. Oral presentations,
which exceed three minutes, must be accompanied by three (3) written copies that will be filed with the
meeting clerk at the time of registration.
3. Cross-examination of persons presenting testimony will not be allowed; however, the meeting officer may
ask questions for clarification.
4. The meeting record will be closed on October 9, 2006.
WHEN: September 25, 26, and 28, 2006 at 7:00 p.m. (Registration will begin at 6:30 p.m. at each facility listed below)
WHERE: September 25, 2006
James Sprunt Community College
Highway 11 South
Kenansville, North Carolina
September 26, 2006
Martin Community College
Highway 64 West
Williamston, North Carolina
September 28, 2006
Iredell County Center
444 Bristol Drive
Statesville, North Carolina
IN ADDITION
21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
465
INFORMATION: A copy of the draft animal waste NPDES general permits and fact sheets are available at
http://h2o.enr.state.nc.us/aps/afou/downloads.htm or by writing or calling:
Todd A. Bennett
Aquifer Protection Section
NC Division of Water Quality
1636 Mail Service Center
Raleigh, North Carolina 27699-1636
Telephone number: (919) 715-6627
The fact sheets and general permits are on file at the Division of Water Quality, 2728 Capital Boulevard, Room 1C
211, Raleigh, North Carolina. They may be inspected during normal office hours. All such comments and request
regarding this matter should make reference to Permit Numbers NCA200000, NCA300000 and/or NCA400000.
IN ADDITION
21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
466
North Carolina Department of Labor
Division of Occupational Safety and Health
4 West Edenton Street
Raleigh, NC 27601
(919) 807-2875
NOTICE OF VERBATIM ADOPTION OF FEDERAL STANDARDS
In consideration of G.S. 150-B-21.5(c) the Occupational Safety and Health Division of the Department of Labor hereby gives notice
that:
- rule changes have been submitted to update the North Carolina Administrative Code at 13 NCAC 07F .0201 and 13
NCAC 07F.0301 to incorporate by reference the occupational safety and health related provisions of Title 29 of the
Code of Federal Regulations Part 1926 and Part 1928 promulgated as of July 20, 2006, except as specifically
described, and
- the North Carolina Administrative Code at 13 NCAC 07A.0301 automatically includes amendments to certain parts
of the Code of Federal Regulations, including Title 29, Part 1904—Recording and Reporting Occupational Injuries
and Illnesses.
This update encompasses recent verbatim adoptions concerning:
- Roll Over Protective Structures
(70 FR 41127 - 41161, July 20, 2006)
The Federal Register (FR), as cited above, contains both technical and economic discussions that explain the basis for each change.
For additional information, please contact:
Bureau of Education, Training and Technical Assistance
Occupational Safety and Health Division
North Carolina Department of Labor
1101 Mail Service Center
Raleigh, North Carolina 27699-1101
For additional information regarding North Carolina’s process of adopting federal OSHA Standards verbatim, please contact:
A. John Hoomani, General Counsel
North Carolina Department of Labor
Legal Affairs Division
1101 Mail Service Center
Raleigh, NC 27699-1101
PROPOSED RULES
21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
467
Note from the Codifier: The notices published in this Section of the NC Register include the text of proposed rules. The agency
must accept comments on the proposed rule(s) for at least 60 days from the publication date, or until the public hearing, or a
later date if specified in the notice by the agency. If the agency adopts a rule that differs substantially from a prior published
notice, the agency must publish the text of the proposed different rule and accept comment on the proposed different rule for 60
days.
Statutory reference: G.S. 150B-21.2.
TITLE 11– DEPARTMENT OF INSURANCE
Notice is hereby given in accordance with G.S. 150B-21.2 that
the North Carolina Department of Insurance intends to amend
the rules cited as 11 NCAC 06A .0802 - .0803, .0806 - .0807,
and .0811.
Proposed Effective Date: January 1, 2007
Public Hearing:
Date: October 3, 2006
Time: 10:00 a.m.
Location: 3rd Floor Hearing Room, Dobbs Building, 430 N.
Salisbury Street, Raleigh, NC
Reason for Proposed Action: Amend continuing education
requirements for licensees and course instructors.
Procedure by which a person can object to the agency on a
proposed rule: The Department of Insurance will accept
written objections to these rules until the expiration of the
comment period on November 14, 2006.
Comments may be submitted to: Ellen K. Sprenkel, 1201 Mail
Service Center, Raleigh, NC 27699-1201, phone (919) 733-
4529, fax (919) 733-6495, email esprenke@ncdoi.net.
Comment period ends: November 14, 2006
Procedure for Subjecting a Proposed Rule to Legislative
Review: If an objection is not resolved prior to the adoption of
the rule, a person may also submit written objections to the
Rules Review Commission. If the Rules Review Commission
receives written and signed objections in accordance with G.S.
150B-21.3(b2) from 10 or more persons clearly requesting
review by the legislature and the Rules Review Commission
approves the rule, the rule will become effective as provided in
G.S. 150B-21.3(b1). The Commission will receive written
objections until 5:00 p.m. on the day following the day the
Commission approves the rule. The Commission will receive
those objections by mail, delivery service, hand delivery, or
facsimile transmission. If you have any further questions
concerning the submission of objections to the Commission,
please call a Commission staff attorney at 919-733-2721.
Fiscal Impact:
State
Local
Substantive (>$3,000,000)
None
CHAPTER 06 - AGENT SERVICES DIVISION
SUBCHAPTER 06A - AGENT SERVICES DIVISION
SECTION .0800 - CONTINUING EDUCATION
11 NCAC 06A .0802 LICENSEE REQUIREMENTS
(a) Life and health licensees shall obtain 12 ICECs during each
calendar year in approved life and health courses. Each person
holding a life and health license shall complete a continuing
education course on ethics within two years after January 1,
2008, and every two years thereafter. The course shall comprise
three ICECs and shall be approved by the Commissioner.
(b) Property and liability licensees shall obtain 12 ICECs during
each calendar year in approved property and liability courses.
Each person holding a property and liability license shall
complete a continuing education course on ethics within two
years after January 1, 2008, and every two years thereafter. The
course shall comprise three ICECs and shall be approved by the
Commissioner.
(c) Any person holding more than one license to which this
Section applies shall obtain 18 ICECs during each calendar year,
including a minimum of six ICECs for each kind of license.
(d) An instructor shall receive the maximum ICECs awarded to
a student for the course.
(e) Licensees shall not receive ICECs for the same course more
often than one time in any three calendar year period.
(f) Licensees do not have to obtain ICECs for the calendar year
in which they are initially licensed.
(g) Licensees shall receive ICECs for a course only for the
calendar year in which the course is completed. Any course
requiring an examination shall not be considered completed until
the licensee passes the examination.
(h) Licensees shall maintain records of all ICECs for three years
following the obtaining of such ICECs, which records shall be
available for inspection upon the Commissioner's request.
(i) Nonresident licensees who meet continuing education
requirements in their home states meet the continuing education
requirements of this Section. Nonresident licensees whose home
states have no continuing education requirements shall meet the
requirements of this Section.
(j) Licensees are exempt from the requirements of this Section if
they:
(1) are age 65 or older; and
(2) have been continuously licensed in the line of
insurance for at least 25 years; and
(A) either hold a nationally recognized
professional designation for the line
PROPOSED RULES
21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
468
of insurance. Acceptable
designations include those listed in 11
NCAC 06A .0803(a) and (b); or
(B) certify to the Department of Insurance
annually they are inactive agents
agency owners who neither solicit
applications for insurance nor take
part in the day to day operation of
thean agency.
(k) Any licensee holding more than one license to which this
Section applies and qualifies for exemption under Paragraph (j)
of this Rule for one license type mustshall obtain a minimum of
six ICECs in each calendar year for the license type not
exempted.
(l) Courses completed prior tobefore the issue date of a new
license do not meet the requirements of this Section for that new
license.
(m) No credit will be given for courses taken before they have
been approved by the Department.
(n) Persons who hold adjuster licenses shall obtain 12 ICECs
during each calendar year in approved property and liability
courses. As used in this Section, "licensee" includes a person
who holds an adjuster license and who is required to comply
with this Section.
(o) Each agent holding an active surplus lines license with an
effective date before January 1, 1994, must take a surplus lines
course as part of the agent's 1994 property and liability
continuing education requirement. Each agent issued a surplus
lines license in 1994 must take a surplus lines course as part of
the agent's 1995 property and liability continuing education
requirement.
(o) Each person holding a property and liability, personal lines,
or adjuster license shall complete a continuing education course
on flood insurance and the National Flood Insurance Program
within two years after January 1, 2008, and every four years
thereafter. The course shall comprise three ICECs and shall be
approved by the Commissioner.
Authority G.S. 58-2-40; 58-33-130.
11 NCAC 06A .0803 COURSES SPECIFICALLY
APPROVED
(a) Courses that are necessary to obtain the following nationally
recognized designations are approved as they exist on December
1, 1990, for 18 ICECs upon successful completion of the
national examination for each part:
(1) Accredited Advisor in Insurance (AAI);
(2) Associate in Claims (AIC);
(3) Associate in Loss Control Management
(ALCM);
(4) Associate in Risk Management (ARM);
(5) Associate in Underwriting (AU);
(6) Certified Employees Benefit Specialist
(CEBS);
(7) Chartered Financial Consultant (ChFC);
(8) Chartered Life Underwriter (CLU);
(9) Chartered Property and Casualty Underwriter
(CPCU);
(10) Fellow Life Management Institute (FLMI);
(11) General Insurance (INS);
(12) Life Underwriter Training Council Fellow, 26
week (LUTCF);
(13) Certified Financial Planner (CFP).
(b) Courses that are necessary to obtain the following nationally
recognized designations are approved as they exist on December
1, 1990, for an amount of ICECs to be determined by the
Commissioner's evaluation process: Commissioner under this
Section.
(1) Agency Management Training Course
Graduate;
(2) Certified Insurance Counselor (CIC);
(3) Certified Insurance Service Representative
(CISR);
(4) Certified Professional Service Representative
(CPSR);
(5) Fraternal Insurance Counselor (FIC);
(6) Health Insurance Associate (HIA);
(7) Life Underwriter Training Council Fellow, 13
weeks (LUTCF);
(8) Registered Health Underwriter (RHU).
(c) Courses that are taught by a college or university that is
accredited by the Southern Association of Colleges and Schools
are approved as they exist on December 1, 1990, for a number of
ICECs to be determined by the Commissioner's evaluation
process. Commissioner under this Section.
(d) Each course provider or designee shall submit a fee of one
dollar ($1.00) per approved ICEC per individual that
successfully completes the course.
(e)(d) Any course prepared by the Commissioner is approved as
a component of each resident licensee's continuing education
requirement for a number of ICECs to be determined by the
Commissioner's evaluation process. Commissioner under this
Section.
Authority G.S. 58-2-40; 58-33-130.
11 NCAC 06A .0806 ATTENDANCE
(a) If six or fewer ICECs or less are assigned to a course, the
licensee mustshall attend 100 percent of the course to receive
any ICECs.
(b) If more than six ICECs are assigned to a course, and the
licensee passes the exam and attends at least 80 percent of the
course, the licensee shall receive 100 percent of the ICECs
assigned to the course.
(c) If more than six ICECs are assigned to a course, and the
licensee does not pass the exam but attends at least 80 percent of
the course, the licensee shall receive 80 percent of the ICECs
assigned to the course.
(d) An instructor may conduct a class with up to 30 students
with no additional assistance. For classes with attendance
exceeding 30 students, one assistant to the instructor is required
for each additional 50 students or any portion thereof. Each
assistant shall be physically present in the classroom during the
instructor's presentation.
(e) Providers conducting classes outside of North Carolina or
bordering states where at least 25% of the students are
requesting North Carolina ICECs shall make arrangements and
PROPOSED RULES
21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
469
pay all expenses for a Department continuing education monitor
to attend.
Authority G.S. 58-2-40; 58-33-130.
11 NCAC 06A .0807 HARDSHIP
A licensee may appeal for relief to the Commissioner by
Licensees shall make appeals for extensions of time under G.S.
58-33-130(c) on or before January 1530 of the year immediately
following the calendar year forin which the minimum required
ICECs were not obtained. Upon a finding of reasonable cause,
the Commissioner may extend the time for the licensee to
complete the requirement.
Authority G.S. 58-2-40; 58-33-130.
11 NCAC 06A .0811 SANCTIONS FOR
NONCOMPLIANCE
(a) This Rule establishes sanctions for licensees who fail to
complete their annual continuing education requirements and for
licensees, course providers, course provider personnel, course
presenters, course presenter personnel, and course instructors
who falsify any records or documents in connection with the
continuing education program or who do not comply with G.S.
58-33-125 58-33-130, G.S. 58-33-132, or this Section.
(b) The failure of a licensee to meet the annual continuing
education requirement shall result in the cancellation of his or
her license for the subsequent calendar year. The license will be
reinstated upon proof that the licensee has completed the
continuing education requirements, and subsequently passed the
agent's licensing examination by July 1 of each year of
cancellation. If requirements for reinstatement are not
completed by July 1, the licensee will be required to complete
the full pre-licensing education requirement and pass the agent's
licensing examination before the license will be reinstated. If
the license of any person lapses under G.S. 58-33-130(c), the
Commissioner shall reinstate the license when the person has
completed the continuing education requirements. If the person
does not satisfy the requirements for licensure reinstatement by
July 1 of that year, the person shall complete the appropriate
prelicensing education requirement and pass the appropriate
licensing examination, at which time the Commissioner shall
reinstate the person's license.
(c) The Commissioner may suspend, revoke, or refuse to renew
a license for any of the following causes:
(1) Failure Failing to timely respond to insurance
department Department inquiries, including
continuing education audit requests. requests,
within seven calendar days after the receipt of
the inquiry or request.
(2) Requesting an extension or waiver under false
pretenses.
(3) Refusing to cooperate with insurance
departmentDepartment employees in an
investigation or inquiry.
(d) The Commissioner may suspend, revoke, or refuse to renew
a course provider's, presenter's or instructor's authority to offer
courses for any of the following causes:
(1) Advertising that a course is approved before
the Commissioner has granted such approval
in writing.
(2) Submitting a course outline with material
inaccuracies, either in length, presentation
time, or topic content.
(3) Presenting or using unapproved material in
providing an approved course.
(4) Failing to conduct a course for the full time
specified in the approval request submitted to
the Commissioner.
(5) Preparing and distributing certificates of
attendance or completion before the course has
been approved.
(6) Issuing certificates of attendance or
completion prior to before the completion of
the course.
(7) Failing to issue certificates of attendance or
completion to any licensee who satisfactorily
completes a course.
(8) Failing to promptly notify the Commissioner
in writing of suspected or known improper
activities including attendance and attention
irregularities in writing. violations of the North
Carolina General Statutes or Administrative
Code within 30 days after suspecting or
knowing about the violations.
(9) Any violation of Violating the North Carolina
General Statutes or Administrative Code.
(10) Failing to diligently monitor attendance and
attention of attendees.
(e) Course providers and presenters are responsible for the
activities of persons conducting, supervising, instructing,
proctoring, monitoring, moderating, facilitating, or in any way
responsible for the conduct of any of the activities associated
with the course.
(f) In addition, the Commissioner may require any one of the
following upon a finding of a violation of this Section:
(1) Refunding all course tuition and fees to
licensees.
(2) Providing licensees with a suitable course to
replace the course that was found in violation.
(3) Withdrawal of approval of courses offered by
such the provider, presenter, or instructor for a
period determined by the Commissioner.
instructor.
(g) Each nonresident licensee shall certify to the Commissioner
that the licensee has complied with the continuing education
requirements in the licensee's home state and pay a
recertification fee by March 1 of each year. If the license lapses
under G.S. 58-33-125(c) and an extension of time is not sought,
the Commissioner shall reinstate the license when the licensee
has completed the home state continuing education requirements
and paid a recertification fee.
Authority G.S. 58-2-40; 58-33-130; 58-33-132; 58-33-125(a).
PROPOSED RULES
21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
470
TITLE 12 – DEPARTMENT OF JUSTICE
Notice is hereby given in accordance with G.S. 150B-21.2 that
the Private Protective Services Board intends to amend the rules
cited as 12 NCAC 07D .0203, .0601.
Proposed Effective Date: January 1, 2007
Public Hearing:
Date: September 30, 2006
Time: 2:00 p.m.
Location: Conference Room, 1631 Midtown Place, Suite 104,
Raleigh, NC 27609
Reason for Proposed Action:
12 NCAC 07D .0203 - The Board has determined that if a
licensee is in good standing and has maintained a license at
least two years and then allows the license to expire, the license
may be reissued if application is made within three years of the
expiration date.
12 NCAC 07D .0601 – The Board has determined that P.S.E
Training Schools have altered their training curriculum such
that few schools provide more than 160 hours training.
Procedure by which a person can object to the agency on a
proposed rule: Comments and objections to the proposed rule
will be accepted through November 14, 2006. Comments and
objections must be mailed to Terry Wright, Director, Private
Protective Services Board, 1631 Midtown Place, Suite 104,
Raleigh, NC 27609.
Comments may be submitted to: Terry Wright, Director, 1631
Midtown, Suite 104, Raleigh, NC 27609, phone (919)875-3611
Comment period ends: November 14, 2006
Procedure for Subjecting a Proposed Rule to Legislative
Review: If an objection is not resolved prior to the adoption of
the rule, a person may also submit written objections to the
Rules Review Commission. If the Rules Review Commission
receives written and signed objections in accordance with G.S.
150B-21.3(b2) from 10 or more persons clearly requesting
review by the legislature and the Rules Review Commission
approves the rule, the rule will become effective as provided in
G.S. 150B-21.3(b1). The Commission will receive written
objections until 5:00 p.m. on the day following the day the
Commission approves the rule. The Commission will receive
those objections by mail, delivery service, hand delivery, or
facsimile transmission. If you have any further questions
concerning the submission of objections to the Commission,
please call a Commission staff attorney at 919-733-2721.
Fiscal Impact:
State
Local
Substantive (>$3,000,000)
None
12 NCAC 07D .0203 RENEWAL OR RE-ISSUE OF
LICENSES AND TRAINEE PERMITS
(a) Each applicant for a license or trainee permit renewal shall
submit an original and one copy of a renewal form. This form
shall be submitted to the administrator not less than 30 days
prior to expiration of the applicant's current license or trainee
permit and shall be accompanied by:
(1) a head and shoulders color photograph of the
applicant of a quality sufficient for
identification, one inch by one inch in size and
taken within six months of the application;
(2) statements of the result of a local criminal
history records search by the city-county
identification bureau or clerk of superior court
in each county where the applicant has resided
within the immediate preceding 12 months;
and
(3) the applicant's renewal fee; and
(4) proof of liability insurance as set out in G.S.
74C-10(e).
(b) If a licensee in good standing with the Board has maintained
a license at least two years and then allows the license to expire,
the license may be re-issued if application is made within ten
three years of the expiration date and the following
documentation is submitted to the Board:
(1) an Application For Reinstatement of an
Expired License;
(2) one set of classifiable fingerprints on an
applicant fingerprint card;
(3) one head and shoulders photograph(s) of the
applicant of a quality sufficient for
identification, one inch by one inch in size and
taken within six months of the application;
(4) statements of the result of a local criminal
history records search by the city-county
identification bureau or clerk of superior court
in each county where the applicant has resided
within the immediate preceding 60 months;
(5) the applicant's non-refundable application fee;
(6) proof of liability insurance as set out in G.S.
74C-10(e); and
(7) a separate check or money order made payable
to the State Bureau of Investigations to cover
criminal record checks performed by the State
Bureau of Investigations.
Authority G.S. 74C-5; 74C-8; 74C-9.
12 NCAC 07D .0601 EXPERIENCE REQUIREMENTS
FOR A P.S.E. LICENSE
(a) In addition to the requirements of 12 NCAC 07D .0200,
applicants for a P.S.E. license shall successfully complete a
course of formal instruction at any P.S.E. school approved by the
Board.
(b) A P.S.E. school must consist of not less than 160 hours of
actual classroom instruction in psychological stress evaluation.
Authority G.S. 74C-5.
PROPOSED RULES
21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
471
TITLE 13 – DEPARTMENT OF LABOR
Notice is hereby given in accordance with G.S. 150B-21.2 that
the N.C. Department of Labor/ Wage and Hour Bureau intends
to amend the rules cited as 13 NCAC 12 .0202, .0304 - .0307,
.0402 - .0405, .0601, .0703, .0804 and repeal the rule cited as 13
NCAC 12 .0409.
Proposed Effective Date: January 1, 2007
Public Hearing:
Date: October 4, 2006
Time: 10:00 a.m.
Location: 4 W. Edenton Street, Raleigh, NC 27699 (Room 205)
Reason for Proposed Action: Due to changes made during the
2005 Session of the North Carolina General Assembly, certain
administrative rule changes are needed in order to ensure that
the North Carolina Administrative Code remains consistent with
the Wage and Hour Act.
Procedure by which a person can object to the agency on a
proposed rule: Objections to the proposed rules may be
submitted, in writing, to Erin T. Gould, Assistant Rulemaking
Coordinator, via United States mail at the following address:
1101 Mail Service Center, Raleigh, North Carolina 27699-1101;
or via facsimile at (919) 733-4235. Objections may also be
submitted during the public hearings conducted on these rules,
which are noticed above. Objections shall include the specific
rule citation(s) for the objectionable rule(s), the nature of the
objection(s), and the complete name(s) and contact information
for the individual(s) submitting the objection. Objections must
be received by 5:00 p.m. on November 14, 2006.
Comments may be submitted to: Erin T. Gould, Assistant
Rulemaking Coordinator, 1101 Mail Service Center, Raleigh,
North Carolina 27699-1101, phone (919) 733-0368, fax (919)
733-4235, email erin.gould@nclabor.com
Comment period ends: November 14, 2006
Procedure for Subjecting a Proposed Rule to Legislative
Review: If an objection is not resolved prior to the adoption of
the rule, a person may also submit written objections to the
Rules Review Commission. If the Rules Review Commission
receives written and signed objections in accordance with G.S.
150B-21.3(b2) from 10 or more persons clearly requesting
review by the legislature and the Rules Review Commission
approves the rule, the rule will become effective as provided in
G.S. 150B-21.3(b1). The Commission will receive written
objections until 5:00 p.m. on the day following the day the
Commission approves the rule. The Commission will receive
those objections by mail, delivery service, hand delivery, or
facsimile transmission. If you have any further questions
concerning the submission of objections to the Commission,
please call a Commission staff attorney at 919-733-2721.
Fiscal Impact:
State
Local
Substantive (>$3,000,000)
None
CHAPTER 12 – WAGE AND HOUR
SECTION .0200 - SUBMINIMUM WAGES
13 NCAC 12 .0202 HANDICAPPED WORKER
CERTIFICATION
(a) A "handicapped worker" means an individual whose earning
capacity is impaired by age or physical or mental deficiency or
injury for the work he is to perform.
(b) An application for the issuance of a handicapped worker
certificate establishing a subminimum wage rate for an
individual for a particular job may be made by an employer with
the DirectorAdministrator of the Wage and Hour Division,
Bureau and must include:
(1) the name, address and nature of the business of
the employer;
(2) a description of the occupation at which the
worker is to be employed;
(3) the nature of the worker's disability and its
relation to his work;
(4) the wage the employer proposes to pay the
worker (as a percentage of the State minimum
wage);
(5) signatures of the employer and the worker; and
(6) certification of the applicant's handicap by the
Division of Vocational Rehabilitation Services
of the Department of Human Resources.Health
and Human Services.
(c) If the proposed subminimum wage is less than 50 percent of
the applicable minimum wage, the application and evidence
must establish that the individual is multi-handicapped or so
severely impaired that his earning or productive capacity would
not yield wages equal to at least 50 percent of the minimum
wage if compensated at wage rates which are commensurate
with those for nonhandicapped non-handicapped workers in
industry in the vicinity for essentially the same type, quality, and
quantity of work.
(d) To determine whether the facts justify the issuance of a
certificate, the DirectorAdministrator may require the
submission of additional information and may require the
worker to take a medical examination.
(e) A Handicapped Worker Certificate will be issued by the
DirectorAdministrator only if a proper application has been
made and the facts show:
(1) A special subminimum wage is necessary to
prevent curtailment of the worker's
opportunities for employment.
(2) The earning or productive capacity of the
worker for the work he is to perform is
impaired by age or physical or mental
deficiency or injury.
(3) The wage rate requested reflects adequately
the individual worker's earning or productive
capacity and is not less than 50 percent of the
applicable minimum wage, unless a lower rate
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21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
472
is clearly justified in accordance with (c) of
this Rule.
(4) In an establishment or a vicinity where
nonhandicappednon-handicapped employees
are employed at piece rates in the same
occupation, the handicapped worker will be
paid at least the same piece rates or at the
hourly rate specified in the certificate,
whichever is greater.
(f) When a certificate is issued, the subminimum wage rate will
be established as a percentage of the State minimum wage, so
that the handicapped worker's wage rate will adjust
automatically with changes in the State minimum wage without
reissuance of a new certificate. Copies of the certificate shall be
transmitted to the employer and the worker. The employer shall
keep, maintain and have available for inspection a copy of the
certificate.
(g) A certificate may not be issued retroactively and will be
issued for a period of three years, subject to renewal by the
Director. Administrator. The terms of a certificate, including
wage rate, may be amended by the DirectorAdministrator upon
written notice to the parties concerned, if the facts justify such
an amendment. A certificate expires automatically when there is
a substantial change in the job description, employment is
terminated, or due to a change in circumstances the Director
Administrator determines that the certificate or the subminimum
wage rate set by the certificate no longer complies with the
requirements of this Rule.
(h) Any person aggrieved by an action of the
DirectorAdministrator pursuant to this Rule may, within 15 days
after such action, file with the Director Administrator a written
petition for review setting forth the grounds. The Commissioner
of Labor or his designated hearing officer may conduct a hearing
and offer aggrieved persons the opportunity to present data and
views pursuant to 13 NCAC Subchapter 1B. Chapter 150B,
Article 3 of the North Carolina General Statutes. Any person
adversely affected by the decision of the Commissioner or his
designee may appeal by filing a written petition for a contested
case hearing with the Office of Administrative Hearings (OAH)
under Chapter 150B, Article 3 of the North Carolina General
Statutes.
(i) Certificates providing subminimum wage rates for sheltered
workshops for the handicapped may be issued in accordance
with the rules and regulations promulgated under the F.L.S.A.
regulating and allowing for the issuance of such certificates.
Authority G.S. 95-25.3; 95-25.15; 95-25.17; 95-25.19.
SECTION .0300 – WAGES
13 NCAC 12 .0304 WITHHOLDING OF WAGES
(a) The employer shall furnish the employee an itemized
statement indicating the amount and purpose of all deductions,
diversions, payments or withholding of wages for each pay
period in which deductions or recoupments are made.
(b) A repayment in excess of the statutory limitation prescribed
in G.S. 95-25.10, is permitted if the repayment is voluntary. A
repayment is voluntary if it is made without fraud,
misrepresentation, undue influence, duress, or coercion.
(c) In the case of employees for whom there is no hourly
record-keeping requirement, an average number of hours worked
per pay period may be agreed upon in writing in advance by the
employer and each employee and may be used for calculating
the amount of protected wages each pay period. Such
agreements are subject to modification as necessary to reflect
permanent and substantial changes in the average number of
hours worked per pay period.
(b) "Criminal process," as that term is used in G.S. 95-25.8(e),
means any citation, criminal summons, warrant for arrest, or
order for arrest, issued by a justice, judge, magistrate, clerk of
court, or law enforcement officer for the purpose of requiring a
person to appear in court and answer to allegations of a cash
shortage, inventory shortage, or damage to an employer's
property based upon a showing of probable cause supported by
oath or affirmation.
Authority G.S. 95-25.8; 95-25.11; 95-25.13; 95-25.19.
13 NCAC 12 .0305 AUTHORIZATION FOR
WITHHOLDING OF WAGES
(a) An employer may withhold or divert a portion of an
employee's wages without the employee's authorization only
when the employer is required or empowered to do so by North
Carolina or federal law. A valid authorization by an employee is
required in all other circumstances for an employer to make a
deduction from an employee's wages. Two types of authorization
are permitted:
(1) A specific authorization shall be used when
the amount or rate of the proposed deduction is
known and agreed to at the time the employee
signs the authorization.
(2) A blanket authorization shall be used when the
amount of the proposed deduction is not
known and agreed to at the time the employee
signs the authorization.
(b) An authorization by an employee, to be valid, shall:
(1) be written;
(2) be signed by the employee on or before the
payday for the pay period for which the
deduction is being made;
(3) show the date of signing by the employee;
(4) state the reason for the deduction; and
(5) if it is a specific authorization, state the
specific dollar amount or percentage of wages
to be deducted from each paycheck and the
number of paychecks or length of time for
which the deduction is authorized.
(c) A specific authorization may be for one or more paychecks
and shall state the dollar amount or percentage of wages which
the employee agrees may be deducted from each paycheck.
Employers shall give employees a reasonable opportunity to
withdraw specific authorizations if such deductions are for their
convenience. Deductions for the convenience of the employees
include, but are not limited to, such things as savings plans,
credit union installments, savings bonds, union or club dues,
uniform rental, uniform cleaning, parking and charitable
contributions.
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21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
473
(d) An employer shall not make a deduction under a blanket
authorization until the employee has been given:
(1) Advance notice of the specific amount of the
proposed deduction. For purposes of
deductions involving cash shortages, inventory
shortages, or loss or damage to an employer's
property, advance notice shall be at least the
seven day period prescribed in G.S. 95-25.9.
(2) A "reasonable opportunity to withdraw" the
authorization before the deduction is made. A
reasonable opportunity to withdraw a blanket
authorization shall be at least three calendar
days from the date of the employer's notice of
the specific amount of the deduction to be
taken.
(e)(a) When an authorization is required by the Act, the
monetary limitations and time requirements specified in G.S.
95-25.8, 95-25.9 and 95-25.10 95-25.8 of the Wage and Hour
Act apply and shall not be waived.
(b) Deductions for the convenience of the employee, as that
term is used in G.S. 95-25.8, include savings plans, credit union
installments, savings bonds, union or club dues, uniform rental
or cleaning not required by the employer, parking and charitable
contributions.
(c) A "reasonable opportunity to withdraw," as that term is used
in G.S. 95-25.8(a), shall be at least three calendar days from the
date of the employer's notice of the actual amount to be deducted
or the employee's written notice of withdrawal of the
authorization.
(f)(d) In accordance with G.S. 95-25.8(d), Advances advances
of wages to the employee or to a third party at the employee's
request are considered to be prepayment of wages. Advances of
wages to a third party at the employee's request are also
considered to be prepayment of wages. A dated receipt, signed
by the employee, for the advance of wages, shall be sufficient to
show that the advance was requested and made. No withholding
authorizations are required by G.S. 95-25.8(2) when the
employer deducts for the advanced wages.
(g)(e) In the absence of an executed loan document, the
principal of a loan Loans from an employer to an employee
isthat are considered to be an advance of wages.wages pursuant
to G.S. 95-25.8(d) Such loans may include credit advanced by
the employer to an employee at the employee's request for
purchasing from the employer items not primarily for the benefit
of the employer. employer and personal usage of the employer's
property when designated for business use only.Deductions for
interest and other related charges require written authorization in
accordance with these rules. Personal loans from a supervisor to
a subordinate or loans made by third parties to an employee with
payroll deduction arrangements are not an advance of wages.
(h)(f) An overpayment of wages to an employee as a result of a
miscalculation of wages or other bona fide error may be treated
as an advance of wages by the employer. If the an employer
underpays wages to an employee as a result of a miscalculation
of wages or other bona fide error, the employer shall pay any
such underpayment owed as soon as possible upon the discovery
of the error and no later than the next regularly scheduled pay
day, along with accrued interest at the legal rate set forth in G.S.
24-1 from the date the wages first became due.
(i)(g) Authorizations for deductions that are not permitted by
law are invalid. For example:
(1) G.S. 97-21 invalidates agreements by an
employee to pay any portion of a premium
paid by his or her employer to a workers'
compensation insurance carrier;
(2) 13 NCAC 07F .0101(a)(2) requires the
employer to provide, at no cost to the
employee, all personal protective equipment
which the employee does not wear off the
jobsite for use off the job.
If an employer withholds or diverts wages for purposes not
permitted by law, the employer shall be in violation of G.S. 95-
25.6 or G.S. 95-25.7, or both, even if the employee authorizes
the withholding in writing pursuant to G.S. 95-25.8(2),95-
25.8(a), because that authorization is invalid.
(j)(h) An employer may obtain a written authorization pursuant
to G.S. 95-25.8(2)(a)95-25.8(a) and include in the authorization
a provision for deducting the balance of the unpaid amount from
the employee's paycheck in the event the employee separates
before the full amount has been collected. If the employer
obtains such an authorization, the employer may deduct as much
of the balance possible from the final paycheck without having
to give the employee notice of the amount and a reasonable
opportunity to withdraw his or her authorization as required by
G.S. 95-25.8(2)(b),95-25.8(a), subject to the withholding
limitations of G.S. 95-25.10.95-25.8(b).
(k)(i) A wage credit in the form of tips in accordance with Rule
.0303 of this Section, or the reasonable costs of meals, lodging
or other facilities in accordance with Rule .0301 of this Section,
is not a withholding of wages and does not require written
authorization pursuant to G.S. 95-25.8(2).95-25.8(a). If the
employer does not include in the specific authorization an
express provision to deduct the balance upon an employee's
separation, then an employer shall not deduct from the final
paycheck an unpaid balance which is greater than the specific
amount or percentage authorized unless an additional
authorization is obtained.
(l) An employer is permitted to establish an escrow or bond
account funded by an employee's wages to recover amounts
owed to the employer, as long as the employer obtains a valid
authorization from the employee pursuant to G.S. 95-25.8(2)
before diverting wages to such an account. An employer must
also obtain a valid authorization from the employee before
making a deduction from the account. Upon discontinuance of
employment for any reason, remaining funds shall be returned to
the employee.
Authority G.S. 95-25.8; 95-25.11; 95-25.13; 95-25.19.
13 NCAC 12 .0306 VACATION PAY
(a) Employers shall notify employees of the employer's policies
and practices concerning vacation pay as follows:
(1) Orally or in writing at the time of hiring;
(2) By making a copy of the policies and practices
available to them in writing or through a
posted notice maintained in a place accessible
to the employees; and
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21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
474
(3) Before the effective date of any changes, in
writing or through a posted notice maintained
in a place accessible to the employees.
(b)(a) All vacation policies and practices shall address:
(1) How and when vacation is earned so that the
employees know the amount of vacation to
which they are entitled;
(2) Whether or not vacation time may be carried
forward from one year to another, and if so, in
what amount;
(3) When vacation time must be taken;
(4) When and if vacation pay may be paid in lieu
of time off; and
(5) Under what conditions and in what amount
vacation pay will be paidforfeited upon
discontinuation of employment. employment
for any reason.
(c)(b) Ambiguous policies and practices shall be construed
against the employer and in favor of employees.
(d)(c) Vacation benefits granted under a policy which does not
establish an earning period cannot be reduced or eliminated as a
result of a change in policy. An example of such a policy is:
"Employees are entitled to one week of vacation per calendar
year." If a policy which establishes an earning period or accrual
rate is changed, employees are entitled to a pro rata share of the
benefits earned under the original policy through the effective
date of the change and of the benefits earned under the new
policy from the effective date forward, so long as the earning
criteria are met under both policies.
Authority G.S. 95-25.2; 95-25.12; 95-25.13; 95-25.19.
13 NCAC 12 .0307 BONUSES, COMMISSIONS AND
OTHER FORMS OF WAGE CALCULATION
(a) Employers may pay wages based on bonuses, commissions
or other forms of calculation as infrequently as annually, if the
employees are so notified before earning such wages.
(b) Employers shall notify employees of the employers' policies
and practices concerning pay, wages based on bonuses,
commissions, or other forms of calculation as follows and in
accordance with Rule .0801 of this Chapter:
(1) Orally or in writing at the time of hiring;
(2) By making a copy of the policies and practices
available to them in writing or through a
posted notice maintained in a place accessible
to the employees; and,
(3) Before the effective date of any changes, in
writing or through a posted notice maintained
in a place accessible to the employees.wage
calculation.
(c) Ambiguous policies and practices shall be construed against
the employer and in favor of employees.
(d) All policies or practices relating to bonuses, commissions, or
other forms of calculation wages shall address:
(1) How and when bonuses, commissions or other
forms of calculation wages are earned so that
the employees know the amount of bonuses,
commissions or other forms of calculation
wages to which they are entitled; and
(2) Under what conditions and in what amount
bonuses, commissions or other forms of
calculation wages will be paid upon
discontinuation of employment.
(e) Wages computed under a bonus, commission, or other forms
of calculation policy or practice which does not establish
specific earning criteria cannot be reduced or eliminated as a
result of a change in policy or practice. An example of such a
policy is: "Employees earn commissions of xx% on all 'sales'
(where sales are not defined by the employer)." If the employer
changes a policy or practice which establishes specific earning
criteria, the employee is entitled to the bonus, commission or
other forms of calculation wages earned under the original
policy through the effective date of the change and is entitled to
the bonus, commission or other forms of calculation wages
earned under the new policy from the effective date forward, so
long as the earning criteria are met under both policies.
Authority G.S. 95-25.6; 95-25.7; 95-25.13; 95-25.19.
SECTION .0400 - YOUTH EMPLOYMENT
13 NCAC 12 .0402 APPLICATION FOR A YOUTH
EMPLOYMENT CERTIFICATE
(a) A youth may obtain a youth employment certificate may be
obtained:from
(1) electronically from the Department of Labor;
or
(2) from the county director of social services'
office in the county in which the youth resides
or the county in which the youth intends to
work, or from a designee outside the social
services' office in the county in which the
youth resides or the county in which the youth
intends to work who has been approved to
issue youth employment certificates pursuant
to 13 NCAC 12 .0407.
(b) Proof of Age.
(1) If the youth employment certificate is obtained
electronically, the employer shall verify the
age of the youth.
(2) If the youth employment certificate is not
obtained electronically, The the youth must
provide proof of age by means of one of the
following:
(1)(A) A birth certificate;
(2)(B) Evidence from the bureau of vital
statistics in the state in which the
youth was born;
(3)(C) Any state driver's license, learner's
permit, or state-issued identification
card;
(4)(D) Passport;
(5)(E) School records or insurance records;
or
(6)(F) Other documentary evidence
determined as equivalent by the Wage
and Hour Office.Bureau.
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21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
475
(c) The youth shall obtain a youth employment certificate form
on which the youth and the employer must supply the following
information:
(1) Youth's name, address, phone number, sex,
age and birth date;
(2) Employer's company name, type of business,
address and phone number; and
(3) Job description.
(d) The A youth employment certificate obtained pursuant to
Paragraph (a) of this Rule shall not be valid unless it is must be
signed by the youth, youth and by a parent, guardian, custodian,
or other person standing in place of a parent as defined in 29
CFR 570.126, loco parentis and by the employer. In the event
that a final decree of emancipation has been issued for the youth
by a court of competent jurisdiction pursuant to G.S. 7B, Article
35, the youth may sign the certificate without the approval of a
parent, guardian or custodian, or other person standing in place
of a parent as defined in 29 CFR 570.126 loco parentis.
(e) A youth may obtain a youth employment certificate
electronically from the Department of Labor, if available. The
Department shall use electronic means to verify the age and
permissibility of employment based on type of employment and
prohibitions in G.S. 95-25.5 and the child labor provisions of the
F.L.S.A. Electronically issued youth employment certificates
shall not be valid until signed as set forth in Paragraph (d) of this
Rule.
Authority G.S. 95-25.5; 95-25.19.
13 NCAC 12 .0403 REVIEW: ISSUANCE AND
MAINTENANCE OF CERTIFICATES
(a) The county director of social services, approved designee or
the Department of Labor shall review the youth employment
certificate to see that it is complete and shall ascertain the age of
the youth by the means prescribed in Rule .0402 of this Section
and the permissibility of employment based on type of
employment and prohibitions in G.S. 95-25.5 and the child labor
provisions of the F.L.S.A.
(b) The county director of social services, approved designee or
Department of Labor shall sign, date and issue the certificate.
The employer's copy of the certificate shall be given to the
youth. Certificates shall not be issued if:
(1) The proposed employment does not comply
with all statutory requirements and
prohibitions, and all rules and regulations
promulgated under this Section; or
(2) The proposed employment will be in violation
of the F.L.S.A. and all rules promulgated
thereunder.
(c) The county director of social services or Department of
Labor shall send one copy of each certificate to the Wage and
Hour Bureau within one week of issuance, and shall maintain
one copy of the each certificate on file for two years following
the date of issuance. and shall send one copy to the Wage and
Hour Office at the end of each week.
(d) The employer's copy of the youth employment certificate
must be given to the employer by the youth on or before the first
day of employment. The employer shall not employ a youth
until the employer has received its copy of the issued certificate.
The employer shall maintain the certificate on record where it is
readily accessible to any person authorized to inspect or
investigate youth employment. The employer shall maintain the
certificate on record so long as the youth is employed thereunder
and for two years after the employment terminates.
(e) The employer or youth may request a review of the denial of
a certificate by written or oral request to the Wage and Hour
Office. Bureau. Appeals of the review decisions rendered must
be made in writing within 15 days to the Wage and Hour
Administrator who shall issue a written decision. Requests for
appeal of the Administrator's decision must be addressed to the
Office of Administrative Hearings in accordance with G.S.
150B, Article 3. Any person adversely affected by the
Administrator's decision may appeal by filing a written petition
for a contested case hearing with the Office of Administrative
Hearings (OAH) under Chapter 150B, Article 3 of the North
Carolina General Statutes.
Authority G.S. 95-25.5; 95-25.14; 95-25.15.
13 NCAC 12 .0404 WAIVER
(a) When a proper application for a waiver of any youth
employment provision is received, if the proposed employment
is in the best interest of the youth and his health and safety will
not be adversely affected, the Director Administrator of the
Wage and Hour Division Bureau shall recommend that the Chief
Deputy Commissioner of the Department of Labor issue a
waiver for the youth. Absent a contrary determination by the
Chief Deputy Commissioner on the hardship to the youth or the
effect on the health and safety of the youth, the Chief Deputy
Commissioner shall issue the waiver for the youth.
(b) Any person adversely affected by a decision of the director
Administrator or Chief Deputy Commissioner may appeal the
decision by filing a written petition for a contested case hearing
with the Office of Administrative Hearings (OAH)pursuant to
the procedures contained in Article 3 of G.S. 150B. under
Chapter 150B, Article 3 of the North Carolina General Statutes.
Authority G.S. 95-25.5; 95-25.17.
13 NCAC 12 .0405 REVOCATION
(a) The Director Administrator of the Wage and Hour Division
Bureau or his designated representative shall review the issuance
of all youth employment certificates by county social services
directors. If upon review, or because of any other circumstance,
the Director Administrator determines a certificate has been
issued in violation of the youth employment provisions or the
rules and regulations promulgated thereunder, he shall notify the
youth, the county social service director and the employer of the
youth that the certificate is being revoked and shall specify the
reasons for the revocation.
(b) If the certificate is revoked, the employer shall cease to
employ the youth and shall return the certificate to the Director
Administrator of the Wage and Hour DivisionBureau or to the
county social service director, who shall forward it to the Wage
and Hour Director. Administrator.
(c) The employer or youth may object to the revocation by
filing a written petition for a contested case hearing with the
Office of Administrative Hearings (OAH) pursuant to the
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21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
476
procedures contained in Article 3 of Chapter 150B of the
General Statutes.under Chapter 150B, Article 3 of the North
Carolina General Statutes. Even if a petition for a hearing is
filed, the certificate must be returned and the employment must
cease pursuant to Paragraph (b) of this Rule.
Authority G.S. 95-25.5; 95-25.17.
13 NCAC 12 .0409 PARENTAL EXEMPTION
For purposes of the exemption listed in G.S. 95-25.5(i), a parent
is deemed to be a natural or adoptive parent.
Authority G.S. 95-25.5; 95-25.19.
TITLE 15A – DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES
Notice is hereby given in accordance with G.S. 150B-21.2 that
the Environmental Management Commission intends to amend
the rules cited as 15A NCAC 02D .0902, .0909, .1402, .1403.
Proposed Effective Date: January 1, 2007
Public Hearing:
Date: October 4, 2006
Time: 7:00 p.m.
Location: Charlotte-Mecklenburg Government Center,
Chamber Room CH-14, 600 East 14th Street, Charlotte, NC
28202
Reason for Proposed Action: To require reasonable available
control technology for volatile organic compounds and nitrogen
oxides in the counties in the Charlotte ozone nonattainment area
to meet EPA requirements for a complete State Implementation
Plan (SIP) submittal for the Charlotte ozone nonattainment SIP.
Procedure by which a person can object to the agency on a
proposed rule: Any person desiring to comment is requested to
submit a written statement for inclusion in the record of
proceedings at the public hearing. The hearing officer may limit
oral presentation lengths if many people want to speak. The
hearing record will remain open until November 14, 2006, to
receive additional written statements. To be included, the
statement must be received by the Division by November 14,
2006.
Comments may be submitted to: Thomas Allen, 1641 Mail
Service Center, Raleigh, NC 27699-1641, phone (919) 733-
1489, fax (919) 715-7476, email thom.allen@ncmail.net
Comment period ends: November 14, 2006
Procedure for Subjecting a Proposed Rule to Legislative
Review: If an objection is not resolved prior to the adoption of
the rule, a person may also submit written objections to the
Rules Review Commission. If the Rules Review Commission
receives written and signed objections in accordance with G.S.
150B-21.3(b2) from 10 or more persons clearly requesting
review by the legislature and the Rules Review Commission
approves the rule, the rule will become effective as provided in
G.S. 150B-21.3(b1). The Commission will receive written
objections until 5:00 p.m. on the day following the day the
Commission approves the rule. The Commission will receive
those objections by mail, delivery service, hand delivery, or
facsimile transmission. If you have any further questions
concerning the submission of objections to the Commission,
please call a Commission staff attorney at 919-733-2721.
Fiscal Impact: A copy of the fiscal note can be obtained from
the agency.
State
Local
Substantive (>$3,000,000)
None
CHAPTER 02 - ENVIRONMENTAL MANAGEMENT
SUBCHAPTER 02D - AIR POLLUTION CONTROL
REQUIREMENTS
SECTION .0900 - VOLATILE ORGANIC COMPOUNDS
15A NCAC 02D .0902 APPLICABILITY
(a) The rules in this Section do not apply except as specifically
set out in this Rule.
(b) Regardless of any other statement of applicability of this
Section, this Section does not apply to:
(1) sources whose emissions of volatile organic
compounds are not more than 15 pounds per
day, except that this Section does apply to the
manufacture and use of cutback asphalt and to
gasoline service stations or gasoline
dispensing facilities regardless of levels of
emissions of volatile organic compounds;
(2) sources whose emissions do not exceed 800
pounds of volatile organic compounds per
calendar month and that are:
(A) bench-scale, on-site equipment used
exclusively for chemical or physical
analysis for quality control purposes,
staff instruction, water or wastewater
analyses, or non-production
environmental compliance
assessments;
(B) bench-scale experimentation,
chemical or physical analyses,
training or instruction from not-for-profit,
non-production educational
laboratories;
(C) bench-scale experimentation,
chemical or physical analyses,
training or instruction from hospitals
or health laboratories pursuant to the
determination or diagnoses of illness;
or
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21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
477
(D) research and development laboratory
activities provided the activity
produces no commercial product or
feedstock material; or
(3) emissions of volatile organic compounds
during startup or shutdown operations from
sources which use incineration or other types
of combustion to control emissions of volatile
organic compounds whenever the off-gas
contains an explosive mixture during the
startup or shutdown operation if the exemption
is approved by the Director as meeting the
requirements of this Subparagraph.
(c) The following rules of this Section apply statewide:
(1) .0925, Petroleum Liquid Storage in Fixed Roof
Tanks, for fixed roof tanks at gasoline bulk
plants and gasoline bulk terminals;
(2) .0926, Bulk Gasoline Plants;
(3) .0927, Bulk Gasoline Terminals;
(4) .0928, Gasoline Service Stations Stage I;
(5) .0932, Gasoline Truck Tanks and Vapor
Collection Systems;
(6) 0933, Petroleum Liquid Storage in External
Floating Roof Tanks, for external floating roof
tanks at bulk gasoline plants and bulk gasoline
terminals;
(7) .0948, VOC Emissions from Transfer
Operations;
(8) .0949, Storage of Miscellaneous Volatile
Organic Compounds; and
(9) .0958, Work Practices for Sources of Volatile
Organic Compounds.
(d) Rule .0953, Vapor Return Piping for Stage II Vapor
Recovery, of this Section applies in Davidson, Durham, Forsyth,
Gaston, Guilford, Mecklenburg, Wake, Dutchville Township in
Granville County, and that part of Davie County bounded by the
Yadkin River, Dutchmans Creek, North Carolina Highway 801,
Fulton Creek and back to Yadkin River in accordance with
provisions set out in that Rule.
(e) All sources located in Mecklenburg County that were
required to comply with any of these Rules: Rules before July 5,
1995:
(1) .0917 through .0937 of this Section, or
(2) .0943 through .0945 of this Section, before
July 5, 1995, shall continue to comply with
those Rules.
shall continue to comply with those Rules.
(f) The rules in this Section apply to sources with the potential
to emit 100 tons or more volatile organic compounds per year in
the following areas:
(1) Cabarrus County
(2) Gaston County
(3) Lincoln County
(4) Mecklenburg County
(5) Rowan County
(6) Union County
(7) Davidson Township and Coddle Creek
Township in Iredell County
(f) If a violation of the ambient air quality standard for ozone is
measured in accordance with 40 CFR 50.9 in Cabarrus, Gaston,
Iredell, Lincoln, Mecklenburg, Rowan, or Union County, North
Carolina or York County, South Carolina, the Director shall
initiate analysis to determine the control measures needed to
attain and maintain the ambient air quality standard for ozone.
By the following May 1, the Director shall implement the
specific stationary source control measures contained in this
Section that are required as part of the control strategy necessary
to bring the area into compliance and to maintain compliance
with the ambient air quality standard for ozone. The Director
shall implement the rules in this Section identified as being
necessary by the analysis by notice in the North Carolina
Register. The notice shall identify the rules that are to be
implemented and shall identify whether the rules implemented
are to apply in Gaston or Mecklenburg County or in both
counties. At least one week before the scheduled publication
date of the North Carolina Register containing the Director's
notice implementing rules in this Section, the Director shall send
written notification to all permitted facilities within the county in
which the rules are being implemented that are or may be subject
to the requirements of this Section informing them that they are
or may be subject to the requirements of this Section. (For
Mecklenburg County, "Director" means for the purpose of
notifying permitted facilities in Mecklenburg County, the
Director of the Mecklenburg County local air pollution control
program.) Compliance shall be in accordance with Rule .0909
of this Section.
(g) If a violation of the ambient air quality standard for ozone is
measured in accordance with 40 CFR 50.9 in Davidson, Forsyth,
or Guilford County or that part of Davie County bounded by the
Yadkin River, Dutchmans Creek, North Carolina Highway 801,
Fulton Creek and back to Yadkin River, the Director shall
initiate analysis to determine the control measures needed to
attain and maintain the ambient air quality standard for ozone.
By the following May 1, the Director shall implement the
specific stationary source control measures contained in this
Section that are required as part of the control strategy necessary
to bring the area into compliance and to maintain compliance
with the ambient air quality standard for ozone. The Director
shall implement the rules in this Section identified as being
necessary by the analysis by notice in the North Carolina
Register. The notice shall identify the rules that are to be
implemented and shall identify whether the rules implemented
are to apply in Davidson, Forsyth, or Guilford County or that
part of Davie County bounded by the Yadkin River, Dutchmans
Creek, North Carolina Highway 801, Fulton Creek and back to
Yadkin River or any combination thereof. At least one week
before the scheduled publication date of the North Carolina
Register containing the Director's notice implementing rules in
this Section, the Director shall send written notification to all
permitted facilities within the county in which the rules are
being implemented that are or may be subject to the
requirements of this Section informing them that they are or may
be subject to the requirements of this Section. (For Forsyth
County, "Director" means for the purpose of notifying permitted
facilities in Forsyth County, the Director of the Forsyth County
local air pollution control program.) Compliance shall be in
accordance with Rule .0909 of this Section.
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21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
478
(h) If a violation of the ambient air quality standard for ozone is
measured in accordance with 40 CFR 50.9 in Durham or Wake
County or Dutchville Township in Granville County, the
Director shall initiate analysis to determine the control measures
needed to attain and maintain the ambient air quality standard
for ozone. By the following May 1, the Director shall
implement the specific stationary source control measures
contained in this Section that are required as part of the control
strategy necessary to bring the area into compliance and to
maintain compliance with the ambient air quality standard for
ozone. The Director shall implement the rules in this Section
identified as being necessary by the analysis by notice in the
North Carolina Register. The notice shall identify the rules that
are to be implemented and shall identify whether the rules
implemented are to apply in Durham or Wake County or
Dutchville Township in Granville County or any combination
thereof. At least one week before the scheduled publication date
of the North Carolina Register containing the Director's notice
implementing rules in this Section, the Director shall send
written notification to all permitted facilities within the county in
which the rules are being implemented that are or may be subject
to the requirements of this Section informing them that they are
or may be subject to the requirements of this Section.
Compliance shall be in accordance with Rule .0909 of this
Section.
(i) Sources whose emissions of volatile organic compounds are
not subject to limitation under this Section may still be subject to
emission limits on volatile organic compounds in Rules, .0524,
.1110, or .1111 of this Subchapter.
Authority G.S. 143-215.3(a)(1); 143-215.107(a)(5).
15A NCAC 02D .0909 COMPLIANCE SCHEDULES
FOR SOURCES IN NEW NONATTAINMENT AREAS
(a) Applicability. With the exceptions in Paragraph (b) of this
Rule, this Rule applies to all sources covered by Paragraphs (f),
(g) or (h) (e), (f), or (g) of Rule .0902 of this Section.
(b) Exceptions. This Rule does not apply to:
(1) sources in Mecklenburg County required to
comply with the requirements of this Section
under Rule .0902(c) .0902(e) of this Section;
(2) sources covered under Rule .0953 or .0954 of
this Section; or
(3) sources required to comply with the
requirements of this Section under Rule
.0902(a) .0902(c) of this Section.
(c) Maintenance areas. The owner or operator of any source
subject to this Rule because of the application of Paragraphs (g)
or (h) (e), (f), or (g) of Rule .0902 of this Section shall adhere to
the following increments of progress and schedules:
(1) if compliance is to be achieved by installing
emission control equipment, replacing process
equipment, or modifying existing process
equipment:
(A) A The owner or operator shall submit
a permit application and a compliance
schedule shall be submitted within six
months after the Director notices in
the North Carolina Register that an
area is in violation of the ambient air
quality standard for ozone;
(B) The compliance schedule shall
contain the following increments of
progress:
(i) a date by which contracts for
the emission control system
and process equipment shall
be awarded or orders shall
be issued for purchase of
component parts;
(ii) a date by which on-site
construction or installation
of the emission control and
process equipment shall
begin; and
(iii) a date by which on-site
construction or installation
of the emission control and
process equipment shall be
completed;
(C) Final compliance shall be achieved
within three years after the Director
notices in the North Carolina Register
that the area is in violation of the
ambient air quality standard for
ozone.
(2) if compliance is to be achieved by using low
solvent content coating technology:
(A) A The owner or operator shall submit
a permit application and a compliance
schedule shall be submitted within six
months after the Director notices in
the North Carolina Register that an
area is in violation of the ambient air
quality standard for ozone;
(B) The compliance schedule shall
contain the following increments:
(i) a date by which research and
development of low solvent
content coating shall be
completed if the Director
determines that low solvent
content coating technology
has not been sufficiently
researched and developed;
(ii) a date by which evaluation
of product quality and
commercial acceptance shall
be completed;
(iii) a date by which purchase
orders shall be issued for
low solvent content coatings
and process modifications;
(iv) a date by which process
modifications shall be
initiated; and
(v) a date by which process
modifications shall be
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21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
479
completed and use of low
solvent content coatings
shall begin;
(C) Final compliance shall be achieved
within three years after the Director
notices in the North Carolina Register
that the area is in violation of the
ambient air quality standard for
ozone.
(3) The owner or operator shall certify to the
Director within five days after each increment
deadline of progress in this Paragraph, whether
the required increment of progress has been
met.
(d) Nonattainment areas. The owner or operator of any source
subject to this Rule because of the application of Paragraph (f) of
Rule .0902 of this Section shall adhere to the following
increments of progress and schedules:
(1) if compliance is to be achieved by installing
emission control equipment, replacing process
equipment, or modifying existing process
equipment:
(A) The owner or operator shall submit a
permit application and a compliance
schedule by August 1, 2007;
(B) The compliance schedule shall
contain the following increments of
progress:
(i) a date by which contracts for
the emission control system
and process equipment shall
be awarded or orders shall
be issued for purchase of
component parts;
(ii) a date by which on-site
construction or installation
of the emission control and
process equipment shall
begin; and
(iii) a date by which on-site
construction or installation
of the emission control and
process equipment shall be
completed;
(C) Final compliance shall be achieved
no later than October 1, 2009.
(2) if compliance is to be achieved by using low
solvent content coating technology:
(A) The owner or operator shall submit a
permit application and a compliance
schedule by August 1, 2007;
(B) The compliance schedule shall
contain the following increments:
(i) a date by which research and
development of low solvent
content coating shall be
completed if the Director
determines that low solvent
content coating technology
has not been sufficiently
researched and developed;
(ii) a date by which evaluation
of product quality and
commercial acceptance shall
be completed;
(iii) a date by which purchase
orders shall be issued for
low solvent content coatings
and process modifications;
(iv) a date by which process
modifications shall be
initiated; and
(v) a date by which process
modifications shall be
completed and use of low
solvent content coatings
shall begin;
(C) Final compliance shall be achieved
no later than October 1, 2009.
(3) The owner or operator shall certify to the
Director within five days after the deadline, for
each increment of progress in this Paragraph,
whether the required increment of progress has
been met.
(d) The owner or operator shall certify to the Director within
five days after the deadline, for each increment of progress in
Paragraph (c) of this Rule, whether the required increment of
progress has been met.
(e) If the Director requires a test to demonstrate that compliance
has been achieved achieved, the owner or operator of sources
subject to this Rule shall conduct a test and submit a final test
report within six months after the stated date of final
compliance.
(f) The owner or operator of any new source of volatile organic
compounds not in existence or under construction as of the date
that the Director notices in the North Carolina Register in
accordance with Paragraphs (e), (f), or (g) of Rule .0902 of this
Section that the area is in violation of the ambient air quality
standard for ozone, shall comply with all applicable rules in this
Section upon start-up of the source.
(g)(f) Sources already in compliance.
(1) Maintenance Areas. Paragraph Paragraphs (c)
and (d) of this Rule shall not apply to sources
that are in compliance with applicable rules of
this Section when the Director notices in the
North Carolina Register that the area is in
violation of the ambient air quality standard
for ozone and that have determined and
certified compliance to the satisfaction of the
Director within six months after the Director
notices in the North Carolina Register that the
area is in violation.
(2) Nonattainment areas. Paragraphs (d) of this
Rule shall not apply to sources in an area
named in Paragraph (f) of Rule .0902 of this
Section that are in compliance with applicable
rules of this Section on January 1, 2007.
(g) New sources.
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21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
480
(1) Maintenance areas. The owner or operator of
any new source of volatile organic compounds
not in existence or under construction before
the date that the Director notices in the North
Carolina Register in accordance with
Paragraphs (g) or (h) of Rule .0902 of this
Section that the area is in violation of the
ambient air quality standard for ozone, shall
comply with all applicable rules in this Section
upon start-up of the source.
(2) Nonattainment areas. The owner or operator of
any new source of volatile organic compounds
not in existence or under construction before
January 1, 2007 shall comply with all
applicable rules in this Section upon start-up
of the source.
Authority G.S. 143-215.3(a)(1); 143-215.107(a)(5).
SECTION .1400 – NITROGEN OXIDES
15A NCAC 02D .1402 APPLICABILITY
(a) The rules in this Section do not apply except as specifically
set out in this Rule.
(a)(b) The requirements of this Section shall apply to all sources
May 1 through September 30 of each year.
(b)(c) Rules .1409(b) and.1416 through .1423 of this Section
apply statewide.
(d) The Rules .1407 through .1409 and .1413 of this Section
apply to sources with the potential to emit 100 ton or more
nitrogen oxides per year in the following areas:
(1) Cabarrus County
(2) Gaston County
(3) Lincoln County
(4) Mecklenburg County
(5) Rowan County
(6) Union County
(7) Davidson Township and Coddle Creek
Township in Iredell County
(c) Rules .1407, .1408, .1409(a), and .1413 of this Section apply
to sources identified according to Paragraph (d) of this Rule.
(d) With the exceptions stated in Paragraph (h) of this Rule, this
Section shall apply to:
(1) Charlotte/Gastonia, consisting of Mecklenburg
and Gaston Counties according to Paragraph
(e) of this Rule;
(2) Greensboro/Winston-Salem/High Point,
consisting of Davidson, Forsyth, and Guilford
Counties and the part of Davie County
bounded by the Yadkin River, Dutchmans
Creek, North Carolina Highway 801, Fulton
Creek and back to Yadkin River according to
Paragraph (f) of this Rule; or
(3) Raleigh/Durham, consisting of Durham and
Wake Counties and Dutchville Township in
Granville County according to Paragraph (g)
of this Rule.
(e) If a violation of the ambient air quality standard for ozone is
measured according to 40 CFR 50.9 in Cabarrus, Gaston, Iredell,
Lincoln, Mecklenburg, Rowan, or Union County, North Carolina
or York County, South Carolina, the Director shall initiate
analysis to determine the control measures needed to attain and
maintain the ambient air quality standard for ozone. By the
following May 1, the Director shall implement the specific
stationary source control measures contained in this Section that
are required as part of the control strategy necessary to bring the
area into compliance and to maintain compliance with the
ambient air quality standard for ozone. The Director shall
implement the rules in this Section identified as necessary by the
analysis by notice in the North Carolina Register. The notice
shall identify the rules that are to be implemented and shall
identify whether the rules implemented are to apply in Gaston or
Mecklenburg County or in both counties. At least one week
before the scheduled publication date of the North Carolina
Register containing the Director's notice implementing rules in
this Section, the Director shall send written notification to all
permitted facilities within the county in which the rules are
being implemented that are or may be subject to the
requirements of this Section informing them that they are or may
be subject to the requirements of this Section. (For Mecklenburg
County, "Director" means for the purpose of notifying permitted
facilities in Mecklenburg County, the Director of the
Mecklenburg County local air pollution control program.)
Compliance shall be according to Rule .1403 of this Section.
(f)(e) If a violation of the ambient air quality standard for ozone
is measured according to 40 CFR 50.9 in Davidson, Forsyth, or
Guilford County or that part of Davie County bounded by the
Yadkin River, Dutchmans Creek, North Carolina Highway 801,
Fulton Creek and back to Yadkin River, the Director shall
initiate analysis to determine the control measures needed to
attain and maintain the ambient air quality standard for ozone.
By the following May 1, the Director shall implement the
specific stationary source control measures contained in this
Section that are required as part of the control strategy necessary
to bring the area into compliance and to maintain compliance
with the ambient air quality standard for ozone. The Director
shall implement the rules in this Section identified as necessary
by the analysis by notice in the North Carolina Register. The
notice shall identify the rules that are to be implemented and
shall identify whether the rules implemented are to apply in
Davidson, Forsyth, or Guilford County or that part of Davie
County bounded by the Yadkin River, Dutchmans Creek, North
Carolina Highway 801, Fulton Creek and back to Yadkin River
or any combination thereof. At least one week before the
scheduled publication date of the North Carolina Register
containing the Director's notice implementing rules in this
Section, the Director shall send written notification to all
permitted facilities within the county in which the rules are
being implemented that are or may be subject to the
requirements of this Section informing them that they are or may
be subject to the requirements of this Section. (For Forsyth
County, "Director" means for the purpose of notifying permitted
facilities in Forsyth County, the Director of the Forsyth County
local air pollution control program.) Compliance shall be
according to Rule .1403 of this Section.
(g)(f) If a violation of the ambient air quality standard for ozone
is measured according to 40 CFR 50.9 in Durham or Wake
County or Dutchville Township in Granville County, the
PROPOSED RULES
21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
481
Director shall initiate analysis to determine the control measures
needed to attain and maintain the ambient air quality standard
for ozone. By the following May 1, the Director shall implement
the specific stationary source control measures contained in this
Section that are required as part of the control strategy necessary
to bring the area into compliance and to maintain compliance
with the ambient air quality standard for ozone. The Director
shall implement the rules in this Section identified as necessary
by the analysis by notice in the North Carolina Register. The
notice shall identify the rules that are to be implemented and
shall identify whether the rules implemented are to apply in
Durham or Wake County or Dutchville Township in Granville
County or any combination thereof. At least one week before the
scheduled publication date of the North Carolina Register
containing the Director's notice implementing rules in this
Section, the Director shall send written notification to all
permitted facilities within the county in which the rules are
being implemented that are or may be subject to the
requirements of this Section informing them that they are or may
be subject to the requirements of this Section. Compliance shall
be in according to Rule .1403 of this Section.
(h)(g) Regardless of any other statement of applicability of this
Section, thisThis Section does not apply to any:
(1) source not required to obtain an air permit
under 15A NCAC 02Q .0102 or is an
insignificant activity as defined at 15A NCAC
02Q .0103(19);
(2) incinerator or thermal or catalytic oxidizer
used primarily for the control of air pollution;
(3) emergency generator;
(4) emergency use internal combustion engine;
(5) source that is not covered under Rules .1416,
.1417, or .1418, and that is at a facility with a
federally enforceable potential to emit nitrogen
oxides of:
(A) less than 100 tons per year; and
(B) less than 560 pounds per calendar day
beginning May 1 through September
30 of any year.
(6) stationary internal combustion engine less
than 2400 brake horsepower that operates no
more than the following hours between May 1
and September 30:
(A) for diesel engines:
t = 833,333/ ES
(B) for natural gas-fired engines:
t = 700,280 / ES
where t equals time in hours and ES
equals engine size in horsepower.
This exemption shall not apply to any of the
sources listed in Rules .1417(a)(1) or (2) or
.1417(b) of this Section except that it shall
apply to:
(7) stationary combustion turbine constructed
before January 1, 1979, that has a federally
enforceable permit that restricts:
(A) its potential emissions of nitrogen
oxides to no more than 25 tons
between May 1 and September 30;
(B) it to burning only natural gas or oil;
and
(C) its hours of operation as described in
40 CFR 96.4 (b) (1)(ii) and (iii).
Authority G.S. 143-215.3(a)(1); 143-215.107(a)(5), (7), (10).
15A NCAC 02D .1403 COMPLIANCE SCHEDULES
(a) Applicability. This Rule applies to sources as set out in
covered by Paragraph (d), (f), or (g) of Rule .1402 of this
Section.
(b) Maintenance areas. The owner or operator of a source
subject to this Rule because of the applicability of Paragraphs
(e), (f), Paragraph (f) or (g) of Rule .1402 of this Section, shall
adhere to the following: following increments of progress and
schedules:
(1) If compliance with this Section is to be
achieved through a demonstration to certify
compliance without source modification:
(A) The owner or operator shall notify the
Director in writing within six months
after the Director's notice in the North
Carolina Register that the source is in
compliance with the applicable
limitation or standard;
(B) The owner or operator shall perform
any required testing, according to
Rule .1415 of this Section, within 12
months after the Director's notice in
the North Carolina Register to
demonstrate compliance with the
applicable limitation; and
(C) The owner or operator shall
implement any required
recordkeeping and reporting
requirements, according to Rule
.1404 of this Section, within 12
months after the Director's notice in
the North Carolina Register to
demonstrate compliance with the
applicable limitation.
(2) If compliance with this Section is to be
achieved through the installation of
combustion modification technology or other
source modification:
(A) The owner or operator shall submit a
permit application and a compliance
schedule within six months after the
Director's notice in the North
Carolina Register.
(B) The compliance schedule shall
contain the following increments of
progress:
(i) a date by which contracts for
installation of the
modification shall be
PROPOSED RULES
21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
482
awarded or orders shall be
issued for purchase of
component parts;
(ii) a date by which installation
of the modification shall
begin;
(iii) a date by which installation
of the modification shall be
completed; and
(iv) if the source is subject to a
limitation, a date by which
compliance testing shall be
completed.
(C) Final compliance shall be achieved
within three years after the Director's
notice in the North Carolina Register
unless the owner or operator of the
source petitions the Director for an
alternative limitation according to
Rule .1412 of this Section. If such a
petition is made, final compliance
shall be achieved within four years
after the Director's notice in the North
Carolina Register.
(3) If compliance with this Section is to be
achieved through the implementation of an
emissions averaging plan as provided for in
Rule .1410 of this Section:
(A) The owner or operator shall abide by
the applicable requirements of
Subparagraphs (b)(1) or (b)(2) of this
Rule for certification or modification
of each source to be included under
the averaging plan;
(B) The owner or operator shall submit a
plan to implement an emissions
averaging plan according to Rule
.1410 of this Section within six
months after the Director's notice in
the North Carolina Register.
(C) Final compliance shall be achieved
within one year after the Director's
notice in the North Carolina Register
unless implementation of the
emissions averaging plan requires the
modification of one or more of the
averaging sources. If modification of
one or more of the averaging sources
is required, final compliance shall be
achieved within three years.
(4) If compliance with this Section is to be
achieved through the implementation of a
seasonal fuel switching program as provided
for in Rule .1411 of this Section:
(A) The owner or operator shall make all
necessary modifications according to
Subparagraph (b)(2) of this Rule.
(B) The owner or operator shall include a
plan for complying with the
requirements of Rule .1411 of this
Section with the permit application
required under Part (A) of this
Subparagraph.
(C) Final compliance shall be achieved
within three years after the Director's
notice in the North Carolina Register.
(5) Increments of progress certification. The
owner or operator shall certify to the Director,
within five days after the deadline for each
increment deadline of progress in this
Paragraph, whether the required increment of
progress has been met.
(c) Schedule for utility companies. The owner or operator of a
source subject to this Rule because of Rule .1416 of this Section
shall:
(1) submit to the Director before October 1, 2003,
a description of how the source will comply,
which shall include an estimate of the number
of tons of nitrogen oxides per ozone season,
which may be a range, that will be obtained
from the nitrogen oxide budget trading
program under Rule .1419 of this Section to
show compliance;
(2) submit to the Director a permit application,
following the schedules in 15A NCAC 02Q
.0312, .0313, .0525, or .0527, as applicable, to
receive a permit and make the modification or
construct and begin operating the control
device before the final compliance dates in
Rule .1416 of this Section if a permit is needed
for source modifications or control device
installation or modification; and
(3) install and implement any required monitoring,
recordkeeping, and reporting requirements
before May 1, 2004; if a permit application is
necessary to install and operate the monitor,
the permit application shall be submitted by
October 1, 2003; if a permit application is not
submitted, the Director shall modify the
source's permit by January 1, 2004, to insert
the monitoring, recordkeeping, and reporting
requirements necessary to show compliance
with this Section.
(d) Schedule for large combustion sources. The owner or
operator of a source subject to this Rule because of Rules
.1409(b) or .1417 of this Section shall:
(1) submit to the Director before October 1, 2003,
a description of how the source will comply,
which shall include an estimate of the number
of tons of nitrogen oxides per ozone season,
which may be a range, that will be obtained
from the nitrogen oxide budget trading
program under Rule .1419 of this Section to
show compliance;
(2) submit to the Director a permit application,
following the schedules in 15A NCAC 02Q
.0312, .0313, .0525, or .0527, as applicable, to
receive a permit and make the modification or
PROPOSED RULES
21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
483
construct and begin operating the control
device before the final compliance dates in
Rules .1409(b) or .1417 of this Section if a
permit is needed for source modifications or
control device installation or modification;
(3) install and implement any required monitoring,
recordkeeping, and reporting requirements
before May 1, 2004; if a permit application is
necessary to install and operate the monitor,
the permit application shall be submitted by
October 1, 2003; if a permit application is not
submitted, the Director shall modify the
source's permit by January 1, 2004, to insert
the monitoring, recordkeeping, and reporting
requirements necessary to show compliance
with this Section.
(c) Nonattainment areas. The owner or operator of a source
subject to this Rule because of the applicability of Paragraph (d)
of Rule .1402 of this Section, shall adhere to the following:
(1) If compliance with this Section is to be
achieved through a demonstration to certify
compliance without source modification:
(A) The owner or operator shall notify the
Director in writing by August 1,
2007;
(B) The owner or operator shall perform
any required testing, according to
Rule .1415 of this Section, by January
1, 2008; and
(C) The owner or operator shall
implement any required
recordkeeping and reporting
requirements, according to Rule
.1404 of this Section, by January 1,
2008.
(2) If compliance with this Section is to be
achieved through the installation of
combustion modification technology or other
source modification:
(A) The owner or operator shall submit a
permit application and a compliance
schedule by August 1, 2007;
(B) The compliance schedule shall
contain the following increments of
progress:
(i) a date by which contracts for
installation of the
modification shall be
awarded or orders shall be
issued for purchase of
component parts;
(ii) a date by which installation
of the modification shall
begin;
(iii) a date by which installation
of the modification shall be
completed; and
(iv) if the source is subject to a
limitation, a date by which
compliance testing shall be
completed.
(C) Final compliance shall be achieved
no later than October 1, 2009.
(3) If compliance with this Section is to be
achieved through the implementation of an
emissions averaging plan as provided for in
Rule .1410 of this Section:
(A) The owner or operator shall abide by
the applicable requirements of
Subparagraphs (c)(1) or (c)(2) of this
Rule for certification or modification
of each source to be included under
the averaging plan;
(B) The owner or operator shall submit a
plan to implement an emissions
averaging plan according to Rule
.1410 of this Section by August 1,
2007;
(C) Final compliance shall be achieved
within one year no later than January
1, 2008.
(4) If compliance with this Section is to be
achieved through the implementation of a
seasonal fuel switching program as provided
for in Rule .1411 of this Section:
(A) The owner or operator shall make all
necessary modifications according to
Subparagraph (c)(2) of this Rule;
(B) The owner or operator shall include a
plan for complying with the
requirements of Rule .1411 of this
Section with the permit application
required under Part (A) of this
Subparagraph;
(C) Final compliance shall be achieved
no later than October 1, 2009.
(5) Increments of progress certification. The
owner or operator shall certify to the Director,
within five days after the deadline for each
increment of progress in this Paragraph,
whether the required increment of progress has
been met.
(d) Sources already in compliance.
(1) Maintenance Areas. Paragraph (b) of this Rule
shall not apply to sources that are in
compliance with applicable rules of this
Section when the Director notices in the North
Carolina Register that the area is in violation
of the ambient air quality standard for ozone
and that have determined and certified
compliance to the satisfaction of the Director
within six months after the Director notices in
the North Carolina Register that the area is in
violation.
(2) Nonattainment areas. Paragraph (c) of this
Rule shall not apply to sources in an area
named in Paragraph (d) of Rule .1402 of this
PROPOSED RULES
21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
484
Section that are in compliance with applicable
rules of this Section on January 1, 2007.
(e) New sources.
(1) Maintenance areas. The owner or operator of
any new source of nitrogen oxides not
permitted as of before the date the Director
notices in the North Carolina Register
according to Paragraphs (e), (f), Paragraph (f)
or (g) of Rule .1402 of this Section, shall
comply with all applicable rules in this Section
upon start-up of the source. The owner or
operator of any new source covered under
Rules .1407, .1408, .1409, .1413, or .1418 of
this Section shall comply with all applicable
rules in this Section upon start-up of the
source.
(2) Nonattainment areas. The owner or operator of
any new source of nitrogen oxides not
permitted before January 1, 2008 in an area
identified in Paragraph (d) of Rule .1402 of
this Section, shall comply with all applicable
rules in this Section upon start-up of the
source.
Authority G.S. 143-215.3(a)(1); 143-215.65; 143-215.107(a)(5),
(7), (10).
TITLE 16 – DEPARTMENT OF PUBLIC EDUCATION
Notice is hereby given in accordance with G.S. 150B-21.2 that
the State Board of Education intends to adopt the rule cited as
16 NCAC 06H .0112.
Proposed Effective Date: January 2, 2007
Public Hearing:
Date: October 6, 2006
Time: 1:00 p.m.
Location: Room 224 South, Education Bldg., 301 S.
Wilmington St., Raleigh, NC
Reason for Proposed Action: Rule is needed to comply with
the McKinney-Vento Homeless Education Assistance
Improvements Act of 2001.
Procedure by which a person can object to the agency on a
proposed rule: Persons may submit objections regarding the
proposed rule to Harry E. Wilson, Staff Attorney, State Board of
Education, 6302 Mail Service Center, Raleigh, NC 27699-6302.
Comments may be submitted to: Harry E. Wilson, 6302 Mail
Service Center, Raleigh, NC 27699-6302, phone (919) 807-
3406, fax (919) 807-3198, email hwilson@dpi.state.nc.us
Comment period ends: November 14, 2006
Procedure for Subjecting a Proposed Rule to Legislative
Review: If an objection is not resolved prior to the adoption of
the rule, a person may also submit written objections to the
Rules Review Commission. If the Rules Review Commission
receives written and signed objections in accordance with G.S.
150B-21.3(b2) from 10 or more persons clearly requesting
review by the legislature and the Rules Review Commission
approves the rule, the rule will become effective as provided in
G.S. 150B-21.3(b1). The Commission will receive written
objections until 5:00 p.m. on the day following the day the
Commission approves the rule. The Commission will receive
those objections by mail, delivery service, hand delivery, or
facsimile transmission. If you have any further questions
concerning the submission of objections to the Commission,
please call a Commission staff attorney at 919-733-2721.
Fiscal Impact:
State
Local
Substantive (>$3,000,000)
None
CHAPTER 06 - ELEMENTARY AND SECONDARY
EDUCATION
SUBCHAPTER 06H - FEDERAL PROGRAMS
16 NCAC 06H .0112 DISPUTE RESOLUTION
PROCESS FOR HOMELESS STUDENTS
(a) As used in this Rule:
(1) The terms "homeless," "homeless child," and
"homeless student" shall mean the same as the
term "homeless children and youth" as defined
by 42 U.S.C. § 11435(2). These terms shall
also be deemed to include the term
"unaccompanied youth."
(2) The term "unaccompanied youth" shall mean
the same as defined by 42 U.S.C. § 11435(6).
(b) Each LEA shall appoint a liaison for homeless students. The
LEA shall train the LEA liaison to carry out and mediate the
dispute resolution process as expeditiously as possible and to
ensure that each school and the LEA meets the requirements of
the McKinney-Vento Homeless Education Assistance
Improvements Act of 2001. The LEA liaison shall also ensure
that each unaccompanied youth and any student who meets the
definition of "homeless children and youth" as defined by 42
U.S.C. § 11435(2) is enrolled immediately in the school pending
resolution of the dispute. The burden shall be on the school or
LEA to show that the student is not a homeless student or
unaccompanied youth.
(c) Each LEA shall develop and implement a process for parents,
guardians, or unaccompanied youth who have complaints about
enrollment to file an appeal to the LEA liaison upon registering,
or attempting or register, at the school. Enrollment shall be
deemed to include attending classes and participating fully in
school activities. The appeal process shall provide that:
(1) faculty and staff of the school who know about
the complaint must refer the child, youth,
parent, or guardian to the LEA liaison;
PROPOSED RULES
21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
485
(2) the LEA liaison shall expeditiously carry out
the dispute resolution process;
(3) pending resolution of any complaint between
the school or LEA and the parent, guardian, or
unaccompanied youth over school enrollment,
the LEA shall enroll the child or youth
immediately in the school in which the child or
youth seeks enrollment;
(4) the LEA shall provide the student with all the
services for which the student is eligible and
shall permit the student to participate fully in
school activities while the dispute is being
resolved;
(5) the LEA shall provide the parent, guardian, or
unaccompanied youth who makes a complaint
to the LEA liaison with a written statement of
the rights and procedures, in language the
parent, guardian, or unaccompanied youth can
understand, that informs them of:
(A) contact information including
telephone number and address of the
LEA liaison and of the State
coordinator for homeless education,
with a brief description of their roles;
(B) the right to initiate the dispute
resolution process either orally or in
writing;
(C) a simple form that parents, guardians,
or unaccompanied youth can
complete and submit to the LEA
liaison to initiate the dispute
resolution process;
(D) a step-by-step description of how to
dispute the school's decision;
(E) notice of the right to enroll
immediately in the school of choice
or remain in the school of origin with
transportation provided pending
resolution of the dispute;
(F) notice that immediate enrollment
includes full participation in all
school activities; and
(G) notice of the right to obtain assistance
of advocates or attorneys.
(6) provides the parent, guardian, or
unaccompanied youth with the name and
contact information of the State coordinator
for homeless education; and
(7) informs the parent, guardian, or
unaccompanied youth about the right to appeal
any decision regarding the student's enrollment
to the State coordinator.
(d) Each LEA shall include in the dispute resolution process the
following components:
(1) The LEA shall allow the parent, guardian, or
unaccompanied youth to initiate the dispute
resolution process at the school at which
enrollment is sought or at the LEA liaison's
office.
(2) The LEA shall inform the parent, guardian, or
unaccompanied youth of the right to provide
supporting written or oral documentation.
(3) The LEA shall inform the parent, guardian, or
unaccompanied youth of the right to seek the
assistance of advocates or attorneys.
(4) The LEA shall provide the parent, guardian, or
unaccompanied youth with a written statement
of the final LEA decision.
(5) The LEA shall inform the parent, guardian, or
unaccompanied youth of the right to appeal the
final LEA decision to the State coordinator.
(e) The Superintendent of Public Instruction shall designate a
State coordinator for homeless education.
(f) Any parent, guardian, or unaccompanied youth who is not
satisfied with the final LEA decision regarding enrollment may
appeal the decision to the State coordinator. In addition, any
interested person who believes that grounds for an appeal exist
may present an oral or written appeal to the State coordinator,
including:
(1) the name, address, and telephone number of
the person filing the appeal;
(2) the relationship or connection of the person to
the child in question;
(3) the name of the school system and the specific
school in question;
(4) the federal requirement alleged to have been
violated;
(5) how the requirement has been violated; and
(6) the relief the person is seeking.
(g) If the State coordinator receives an appeal that is not
complete, the coordinator shall contact the person making the
appeal, explain the deficiency, and offer the person the
opportunity to complete the appeal.
(h) Upon request of the State coordinator, the LEA liaison shall
provide the State coordinator with the record of the complaint
and the LEA's actions. If the matter involves more than one
LEA, then the LEA liaisons shall cooperate to provide the State
coordinator with a complete record. In either event, the liaison or
liaisons shall provide the complete record within five school
days following the State coordinator's request.
(i) The LEA shall provide the State coordinator with any
information that the State coordinator requests regarding the
issues presented in the appeal.
(j) The State coordinator shall provide the LEA and the parent,
guardian, or unaccompanied youth with the opportunity to
respond to the LEA decision and to provide any additional
evidence they deem relevant.
(k) The State Coordinator shall issue a final written decision to
the parent, guardian, or unaccompanied youth and the LEA
involved within 10 school days following receipt of the complete
appeal.
(l) The State coordinator's decision shall include:
(1) a summary of the issue appealed;
(2) the federal requirement at issue; and
(3) a description of the State coordinator's
decision in plain language.
(m) Nothing contained in this Rule shall prohibit the State
coordinator from investigating whether the parent, guardian, or
PROPOSED RULES
21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
486
unaccompanied youth knowingly and voluntarily entered into
any agreement affecting their rights under McKinney-Vento
Homeless Education Assistance Improvements Act of 2001. If
the coordinator determines that the parent, guardian, or
unaccompanied youth did not knowingly and voluntarily enter
into the agreement, then the coordinator may void the agreement
and enter a decision consistent with the applicable facts and law.
Authority G.S. 150B-21; 115C-12; 42 U.S.C. § 11432.
TITLE 21 –OCCUPATIONAL LICENSING BOARDS AND
COMMISSIONS
CHAPTER 57 – REAL ESTATE APPRAISAL BOARD
Notice is hereby given in accordance with G.S. 150B-21.2 that
the North Carolina Appraisal Board intends to adopt the rule
cited as 21 NCAC 57A .0211 and amend the rules cited as 21
NCAC 57A .0201, .0203 - .0204, .0206, .0209 - .0210, .0302,
.0405, .0407; 57B .0102 - .0103, .0210, .0304, .0306, .0603 -
.0604, .0606, .0611.
Proposed Effective Date: March 1, 2007
Public Hearing:
Date: November 14, 2006
Time: 9:00 a.m.
Location: 5830 Six Forks Road, Raleigh, NC 27609
Reason for Proposed Action: Most changes are clarifications
of existing rules to reflect current practice. 21 NCAC 57A .0211
is proposed for adoption to establish a process for nonresident
licensing through reciprocity with other states or by application
if North Carolina does not have a reciprocal agreement with the
applicant's resident state.
Procedure by which a person can object to the agency on a
proposed rule: File written comments before November 15,
2006. Attend the public hearing on November 14, 2006. Email
the rulemaking coordinator at Roberta@ncab.org.
Comments may be submitted to: Roberta Ouellette, 5830 Six
Forks Road, Raleigh, NC 27609, phone (919) 870-4854, fax
(919) 870-4859, email roberta@ncab.org
Comment period ends: November 15, 2006
Procedure for Subjecting a Proposed Rule to Legislative
Review: If an objection is not resolved prior to the adoption of
the rule, a person may also submit written objections to the
Rules Review Commission. If the Rules Review Commission
receives written and signed objections in accordance with G.S.
150B-21.3(b2) from 10 or more persons clearly requesting
review by the legislature and the Rules Review Commission
approves the rule, the rule will become effective as provided in
G.S. 150B-21.3(b1). The Commission will receive written
objections until 5:00 p.m. on the day following the day the
Commission approves the rule. The Commission will receive
those objections by mail, delivery service, hand delivery, or
facsimile transmission. If you have any further questions
concerning the submission of objections to the Commission,
please call a Commission staff attorney at 919-733-2721.
Fiscal Impact:
State
Local
Substantive (>$3,000,000)
None
SUBCHAPTER 57A - REGISTRATION LICENSING,
CERTIFICATION AND PRACTICE
SECTION .0200 – TRAINEE REGISTRATION,
APPRAISER LICENSING AND CERTIFICATION
21 NCAC 57A .0201 QUALIFICATIONS FOR
TRAINEE REGISTRATION, APPRAISER LICENSURE
AND CERTIFICATION
(a) Applicants for trainee registration, licensure as a licensed
residential real estate appraiser and certification as a certified
real estate appraiser must satisfy the qualification requirements
stated in G.S. 93E-1-6 as further set forth in Subparagraphs
(a)(1), (a)(2), (a)(3), and (a)(4) of this Rule, provided however
that registration as a trainee or licensure as a licensed residential
real estate appraiser is not prerequisite for certification as a
certified residential or general real estate appraiser: appraiser.
All prelicensing or precertification education must have been
obtained in a classroom setting. No credit will be given for
courses taken by any other method, such as correspondence
school courses or computer based courses.
(1) Applicants for trainee registration shall have
completed, within the five-year period
immediately preceding the date application is
made, 90 hours of education in the areas of
Introduction to Real Estate Appraisal,
Valuation Principles and Practices, Applied
Residential Property Valuation, and, effective
January 1, 2003, and the Uniform Standards of
Professional Appraisal Practice (USPAP) or
appraisal education found by the Board to be
equivalent to such courses.
(2) Applicants for licensure as a licensed
residential real estate appraiser shall have
completed, within the five-year period
immediately preceding the date application is
made, 90 hours of education as set forth in
Subparagraph (a)(1) of this Rule, and shall
have obtained at least 2,000 hours of appraisal
experience acquired within the five-year
period immediately preceding the date
application is made and over a minimum
period of 18 calendar months. Applicants must
have been actively engaged in real estate
appraising for at least 18 months prior to the
date application is made.
PROPOSED RULES
21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
487
(3) Applicants for certification as a certified
residential real estate appraiser shall have
completed those courses required for
registration as a trainee or licensure as a
licensed residential real estate appraiser or
equivalent education and, in addition, within
the five-year period immediately preceding the
date application is made, a course in
Introduction to Income Property Appraisal
consisting of at least 30 classroom hours of
instruction or equivalent education; education,
and the 15 hour National USPAP course; and
shall have obtained at least 2,500 hours of
appraisal experience acquired within the five-year
period immediately preceding the date
application is made and over a minimum
period of two calendar years. Applicants must
have been actively engaged in real estate
appraising for at least two calendar years prior
to the date application is made. At least 50
percent of this appraisal experience must have
been of one to four family residential
properties in which the sales comparison
approach was utilized in the appraisal process.
(4) Applicants for certification as a certified
general real estate appraiser shall have
completed those courses required for
certification as a certified residential real estate
appraiser or equivalent education and, in
addition, within the five-year period
immediately preceding the date application is
made, courses in Advanced Income
Capitalization Procedures and Applied Income
Property Valuation each consisting of at least
30 classroom hours of instruction or equivalent
education;education, and the 15 hour National
USPAP course; and shall have obtained at
least 3,000 hours of appraisal experience
acquired within the five-year period
immediately preceding the date application is
made and over a minimum period of two and a
half calendar years of which at least 50 percent
must have been in appraising non-residential
real estate. Applicants must have been
actively engaged in real estate appraising for at
least two and one-half calendar years prior to
the date application is made. At least 50
percent of the non-residential appraisal
experience must have been of complex
properties or of improved properties in which
the income approach was utilized in the
appraisal process.
(b) Applicants for licensure or certification must submit a
complete copy of their appraisal log and may be required to
provide to the Board copies of appraisal reports in support of
experience credit. All

This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
NORTH CAROLINA
REGISTER
VOLUME 21 ● ISSUE 06 ● Pages 462 - 546
September 15, 2006
I. EXECUTIVE ORDERS
Executive Order No. 105.....................................................................................462
II. IN ADDITION
Voting Rights Letter............................................................................................463
Notice of Intent to Issue State General NPDES for Animal Operations .............464 – 465
Notice of Verbatim Adoption of Federal Standards............................................466
III. PROPOSED RULES
Environment and Natural Resources, Department of
Environmental Management Commission.......................................................476 – 484
Insurance, Department of
Department ......................................................................................................467 – 469
Justice, Department of
Private Protective Services Board ...................................................................470
Labor, Department of
Labor/Wage and Hour Bureau.........................................................................471 – 476
Occupational Licensing Boards and Commissions
Real Estate Appraisal Board............................................................................486 – 496
Public Education, Department of
State Board of Education.................................................................................484 – 486
IV. RULES REVIEW COMMISSION..................................................................497 – 509
V. CONTESTED CASE DECISIONS
Index to ALJ Decisions.......................................................................................510 – 513
Text of Selected Decisions
06 DOJ 0228....................................................................................................514 – 518
05 EHR 2120 ...................................................................................................519 – 523
06 INS 0013.....................................................................................................524 – 526
05 OSP 1012....................................................................................................527 – 535
05 OSP 1771....................................................................................................536 – 546
PUBLISHED BY
The Office of Administrative Hearings
Rules Division
6714 Mail Service Center
Raleigh, NC 27699-6714
Telephone (919) 733-2678
Fax (919) 733-3462
Julian Mann, III, Director
Camille Winston, Deputy Director
Molly Masich, Director of APA Services
Dana Sholes, Publications Coordinator
Julie Edwards, Editorial Assistant
Felicia Williams, Editorial Assistant
Lisa Johnson, RRC Admin. Assistant
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
Contact List for Rulemaking Questions or Concerns
For questions or concerns regarding the Administrative Procedure Act or any of its components, consult with the
agencies below. The bolded headings are typical issues which the given agency can address, but are not inclusive.
Rule Notices, Filings, Register, Deadlines, Copies of Proposed Rules, etc.
Office of Administrative Hearings
Rules Division
Capehart-Crocker House (919) 733-2678
424 North Blount Street (919) 733-3462 FAX
Raleigh, North Carolina 27601-2817
contact: Molly Masich, Director APA Services molly.masich@ncmail.net (919) 733-3367
Dana Sholes, Publications Coordinator dana.sholes@ncmail.net (919) 733-2679
Julie Edwards, Editorial Assistant julie.edwards@ncmail.net (919) 733-2696
Felicia Williams, Editorial Assistant felicia.williams@ncmail.net (919) 733-3361
Rule Review and Legal Issues
Rules Review Commission
1307 Glenwood Ave., Suite 159 (919) 733-2721
Raleigh, North Carolina 27605 (919) 733-9415 FAX
contact: Joe DeLuca Jr., Staff Director Counsel joe.deluca@ncmail.net
Bobby Bryan, Staff Attorney bobby.bryan@ncmail.net
Lisa Johnson, Administrative Assistant lisa.johnson@ncmail.net
Fiscal Notes & Economic Analysis
Office of State Budget and Management
116 West Jones Street (919) 733-7061
Raleigh, North Carolina 27603-8005 (919) 733-0640 FAX
contact: Nathan Knuffman nathan.knuffman@ncmail.net
Governor’s Review
Reuben Young reuben.young@ncmail.net
Legal Counsel to the Governor (919) 733-5811
116 West Jones Street(919) 733-5811
Raleigh, North Carolina 27603
Legislative Process Concerning Rule-making
Joint Legislative Administrative Procedure Oversight Committee
545 Legislative Office Building
300 North Salisbury Street (919) 733-2578
Raleigh, North Carolina 27611 (919) 715-5460 FAX
contact: Karen Cochrane-Brown, Staff Attorney karenc@ncleg.net
Jeff Hudson, Staff Attorney jeffreyh@ncleg.net
County and Municipality Government Questions or Notification
NC Association of County Commissioners
215 North Dawson Street (919) 715-2893
Raleigh, North Carolina 27603
contact: Jim Blackburn or Rebecca Troutman jim.blackburn@ncacc.org
Rebecca Troutman rebecca.troutman@ncacc.org
NC League of Municipalities (919) 715-4000
215 North Dawson Street
Raleigh, North Carolina 27603
contact: Anita Watkins awatkins@nclm.org
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
NORTH CAROLINA REGISTER
Publication Schedule for January 2006 – December 2006
FILING DEADLINES NOTICE OF TEXT PERMANENT RULE TEMPORARY
RULES
Volume &
issue
number
Issue date Last day
for filing
Earliest date for
public hearing
End of required
comment
period
Deadline to submit
to RRC
for review at
next meeting
Earliest Eff.
Date of
Permanent Rule
Delayed Eff. Date of
Permanent Rule
(first legislative
day of the next
regular session)
270th day from publication
in the Register
20:13 01/03/06 12/08/05 01/18/06 03/06/06 03/20/06 05/01/06 05/09/06 09/30/06
20:14 01/17/06 12/21/05 02/01/06 03/20/06 04/20/06 06/01/06 01/07 10/14/06
20:15 02/01/06 01/10/06 02/16/06 04/03/06 04/20/06 06/01/06 01/07 10/29/06
20:16 02/15/06 01/25/06 03/02/06 04/17/06 04/20/06 06/01/06 01/07 11/12/06
20:17 03/01/06 02/08/06 03/16/06 05/01/06 05/22/06 07/01/06 01/07 11/26/06
20:18 03/15/06 02/22/06 03/30/06 05/15/06 05/22/06 07/01/06 01/07 12/10/06
20:19 04/03/06 03/13/06 04/18/06 06/02/06 06/20/06 08/01/06 01/07 12/29/06
20:20 04/17/06 03/24/06 05/02/06 06/16/06 06/20/06 08/01/06 01/07 01/12/07
20:21 05/01/06 04/07/06 05/16/06 06/30/06 07/20/06 09/01/06 01/07 01/26/07
20:22 05/15/06 04/24/06 05/30/06 07/14/06 07/20/06 09/01/06 01/07 02/09/07
20:23 06/01/06 05/10/06 06/16/06 07/31/06 08/21/06 10/01/06 01/07 02/26/07
20:24 06/15/06 05/24/06 06/30/06 08/14/06 08/21/06 10/01/06 01/07 03/12/07
21:01 07/03/06 06/12/06 07/18/06 09/01/06 09/20/06 11/01/06 01/07 03/30/07
21:02 07/17/06 06/23/06 08/01/06 09/15/06 09/20/06 11/01/06 01/07 04/13/07
21:03 08/01/06 07/11/06 08/16/06 10/02/06 10/20/06 12/01/06 01/07 04/28/07
21:04 08/15/06 07/25/06 08/30/06 10/16/06 10/20/06 12/01/06 01/07 05/12/07
21:05 09/01/06 08/11/06 09/16/06 10/31/06 11/20/06 01/01/07 01/07 05/29/07
21:06 09/15/06 08/24/06 09/30/06 11/14/06 11/20/06 01/01/07 01/07 06/12/07
21:07 10/02/06 09/11/06 10/17/06 12/01/06 12/20/06 02/01/07 05/08 06/29/07
21:08 10/16/06 09/25/06 10/31/06 12/15/06 12/20/06 02/01/07 05/08 07/13/07
21:09 11/01/06 10/11/06 11/16/06 01/01/07 01/22/07 03/01/07 05/08 07/29/07
21:10 11/15/06 10/24/06 11/30/06 01/15/07 01/22/07 03/01/07 05/08 08/12/07
21:11 12/01/06 11/07/06 12/16/06 01/30/07 02/20/07 04/01/07 05/08 08/28/07
21:12 12/15/06 11/22/06 12/30/06 02/13/07 02/20/07 04/01/07 05/08 09/11/07
EXPLANATION OF THE PUBLICATION SCHEDULE
This Publication Schedule is prepared by the Office of Administrative Hearings as a public service and the computation of time periods are not to be deemed binding or controlling.
Time is computed according to 26 NCAC 2C .0302 and the Rules of Civil Procedure, Rule 6.
GENERAL
The North Carolina Register shall be published twice
a month and contains the following information
submitted for publication by a state agency:
(1) temporary rules;
(2) notices of rule-making proceedings;
(3) text of proposed rules;
(4) text of permanent rules approved by the Rules
Review Commission;
(5) notices of receipt of a petition for municipal
incorporation, as required by G.S. 120-165;
(6) Executive Orders of the Governor;
(7) final decision letters from the U.S. Attorney
General concerning changes in laws affecting
voting in a jurisdiction subject of Section 5 of
the Voting Rights Act of 1965, as required by
G.S. 120-30.9H;
(8) orders of the Tax Review Board issued under
G.S. 105-241.2; and
(9) other information the Codifier of Rules
determines to be helpful to the public.
COMPUTING TIME: In computing time in the
schedule, the day of publication of the North Carolina
Register is not included. The last day of the period so
computed is included, unless it is a Saturday, Sunday,
or State holiday, in which event the period runs until
the preceding day which is not a Saturday, Sunday, or
State holiday.
FILING DEADLINES
ISSUE DATE: The Register is published on the first
and fifteen of each month if the first or fifteenth of
the month is not a Saturday, Sunday, or State holiday
for employees mandated by the State Personnel
Commission. If the first or fifteenth of any month is
a Saturday, Sunday, or a holiday for State employees,
the North Carolina Register issue for that day will be
published on the day of that month after the first or
fifteenth that is not a Saturday, Sunday, or holiday for
State employees.
LAST DAY FOR FILING: The last day for filing for any
issue is 15 days before the issue date excluding
Saturdays, Sundays, and holidays for State
employees.
NOTICE OF TEXT
EARLIEST DATE FOR PUBLIC HEARING: The hearing
date shall be at least 15 days after the date a notice of
the hearing is published.
END OF REQUIRED COMMENT PERIOD
An agency shall accept comments on the text of a
proposed rule for at least 60 days after the text is
published or until the date of any public hearings held
on the proposed rule, whichever is longer.
DEADLINE TO SUBMIT TO THE RULES REVIEW
COMMISSION: The Commission shall review a rule
submitted to it on or before the twentieth of a month
by the last day of the next month.
FIRST LEGISLATIVE DAY OF THE NEXT REGULAR
SESSION OF THE GENERAL ASSEMBLY: This date is
the first legislative day of the next regular session of
the General Assembly following approval of the rule
by the Rules Review Commission. See G.S. 150B-
21.3, Effective date of rules.
EXECUTIVE ORDERS
21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
462
EXECUTIVE ORDER NO. 105
TO FACILITATE GOVERNMENT EMPLOYEE ACCESS
WHEREAS, all citizens have the right under both the U.S. Constitution and the Constitution of North Carolina to assemble
peaceably, to speak freely, and to petition their government, either individually or through their chosen representatives; and,
WHEREAS, the public interest in efficient and informed state government is served by consultation with persons affected by
those functions, including state employees, and
WHEREAS, the public interest is served by ensuring reasonable access for members of employee organizations to their
chosen representatives and by providing a fair opportunity for employees to choose their representatives.
NOW, THEREFORE, by the power vested in me as Governor by the Constitution and laws of the State of North Carolina,
IT IS ORDERED:
(1) That all state institutions, departments, bureaus, agencies, or commissions subject to the authority of the Governor
shall permit reasonable access to its facilities for the purposes of membership recruitment and consultation with
representatives of a domiciled employees' association that has at least 2,000 members in the state, 500 of whom are
employees of the State, a political subdivision of the State, or are public school employees;
(2) That reasonable access shall include requirements that the employee association submit its request for use of state
facilities in a timely manner, that requests for use of the same facility be limited to a reasonable number of times
each year, that public health and safety not be jeopardized, and that the access be held to the extent possible at the
beginning or end of the workday or shift changes or at the lunch hour;
(3) That representatives of such a domiciled employees' association, who are state employees, shall meet annually with
representatives of the Governor regarding issues of mutual concern prior to the annual convening of the General
Assembly;
(4) That any such domiciled employees' association desiring to be included by the provisions of this Order provide to
the representatives of the Governor evidence that it meets all of the criteria under this Order; and
(5) That the provisions of this Order shall not diminish or infringe upon any rights, responsibilities, powers, or duties
conferred upon any entity by the Constitution of the State of North Carolina or the North Carolina General Statutes.
The Board of Governors of the University of North Carolina System, the State Board of Community Colleges, local boards of
education, and each of heads of the Council of State agencies are encouraged and invited to participate in this Executive Order.
This Executive Order shall take effect immediately and remain in effect until rescinded.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the Great Seal of the State of North Carolina at the
Capitol in the City of Raleigh, this eighteenth day of August in the year of our Lord two thousand and six, and of the Independence of
the United States of America the two hundred and thirtieth.
__________________________________________
Michael F. Easley
Governor
ATTEST:
__________________________________________
Elaine F. Marshall
Secretary of State
IN ADDITION
21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
463
Note from the Codifier: This Section contains public notices that are required to be published in the Register or have been
approved by the Codifier of Rules for publication.
U.S. Department of Justice
Civil Rights Division
JKT:MSR:SMC:jdh Voting Section – NWB.
DJ 166-012-3 950 Pennsylvania Ave., NW
2006-5391 Washington, D.C. 20530
August 10, 2006
Karen M. McDonald, Esq.
City Attorney
P.O. Box 1513
Fayetteville, NC 28302-1513
Dear Ms. McDonald:
This refers to the increase in compensation for the offices of mayor, mayor pro tem and city council, for the City of
Fayetteville in Cumberland County, North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act,
42 U.S.C. 1973c. We received your submission on August 2, 2006.
The Attorney General does not interpose any objection to the specified changes. However, we note that Section 5 expressly
provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of the changes.
In addition, as authorized by Section 5, we reserve the right to reexamine this submission if additional information that would
otherwise require an objection comes to our attention during the reminder of the sixty-day review period. Procedures for the
Administration of Section 5 (28 C.F.R. 51.41 and 51.43).
Sincerely,
John Tanner
Chief, Voting Section
IN ADDITION
21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
464
NOTICE OF PUBLIC MEETING
TO BE HELD BY
THE NORTH CAROLINA ENVIRONMENTAL MANAGEMENT COMMISSION
ON INTENT TO ISSUE NPDES GENERAL PERMITS FOR ANIMAL OPERATIONS
SUBJECT: Public meetings have been scheduled concerning the issuance of animal waste NPDES general permits for the
following types of animal operations:
NPDES General Permit NCA200000 - Swine Operations
NPDES General Permit NCA300000 - Cattle and Dairy Operations NPDES General Permit NCA400000 -
Poultry Operations
PURPOSE: On the basis of preliminary staff review and application of Article 21 of Chapter 143, General Statutes of North
Carolina, and other lawful standards and regulations, the North Carolina Environmental Management Commission
proposes to issue NPDES general permits for animal waste operations subject to specific limitations and special
conditions. The Director of the Division of Water Quality pursuant to NCGS 143-215.4(b)(1) and (2) and
Regulation 15A NCAC 2H, Section .0127 has determined that it is in the public’s interest that meetings be held to
receive all pertinent public comment on whether to issue the draft permits.
All information received by October 9, 2006 will be taken into consideration in finalizing the permitting decisions.
Written comments may be submitted to the address in the Information section listed below.
MEETINGS: The meetings will be conducted in the following manner:
1. Explanation of the NC Environmental Management Commission's Permit Procedure and the proposed
permit conditions by the Division of Water Quality staff;
2. Public Comment - The public meetings are a forum for obtaining water quality information that was either
overlooked or unavailable to the Division at the time the permits were drafted. INFORMATION
PRESENTED SHOULD SPECIFICALLY ADDRESS ISSUES RELATED TO WATER QUALITY
IMPACTS RESULTING FROM WASTE MANAGEMENT. Comments, statements, data and other
information may be submitted in writing or may be presented orally at the meeting. Persons desiring to
speak will indicate this intent at the time of registration at the meeting. So that all persons desiring to speak
may do so, lengthy statements may be limited at the discretion of the meeting officer. Oral presentations,
which exceed three minutes, must be accompanied by three (3) written copies that will be filed with the
meeting clerk at the time of registration.
3. Cross-examination of persons presenting testimony will not be allowed; however, the meeting officer may
ask questions for clarification.
4. The meeting record will be closed on October 9, 2006.
WHEN: September 25, 26, and 28, 2006 at 7:00 p.m. (Registration will begin at 6:30 p.m. at each facility listed below)
WHERE: September 25, 2006
James Sprunt Community College
Highway 11 South
Kenansville, North Carolina
September 26, 2006
Martin Community College
Highway 64 West
Williamston, North Carolina
September 28, 2006
Iredell County Center
444 Bristol Drive
Statesville, North Carolina
IN ADDITION
21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
465
INFORMATION: A copy of the draft animal waste NPDES general permits and fact sheets are available at
http://h2o.enr.state.nc.us/aps/afou/downloads.htm or by writing or calling:
Todd A. Bennett
Aquifer Protection Section
NC Division of Water Quality
1636 Mail Service Center
Raleigh, North Carolina 27699-1636
Telephone number: (919) 715-6627
The fact sheets and general permits are on file at the Division of Water Quality, 2728 Capital Boulevard, Room 1C
211, Raleigh, North Carolina. They may be inspected during normal office hours. All such comments and request
regarding this matter should make reference to Permit Numbers NCA200000, NCA300000 and/or NCA400000.
IN ADDITION
21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
466
North Carolina Department of Labor
Division of Occupational Safety and Health
4 West Edenton Street
Raleigh, NC 27601
(919) 807-2875
NOTICE OF VERBATIM ADOPTION OF FEDERAL STANDARDS
In consideration of G.S. 150-B-21.5(c) the Occupational Safety and Health Division of the Department of Labor hereby gives notice
that:
- rule changes have been submitted to update the North Carolina Administrative Code at 13 NCAC 07F .0201 and 13
NCAC 07F.0301 to incorporate by reference the occupational safety and health related provisions of Title 29 of the
Code of Federal Regulations Part 1926 and Part 1928 promulgated as of July 20, 2006, except as specifically
described, and
- the North Carolina Administrative Code at 13 NCAC 07A.0301 automatically includes amendments to certain parts
of the Code of Federal Regulations, including Title 29, Part 1904—Recording and Reporting Occupational Injuries
and Illnesses.
This update encompasses recent verbatim adoptions concerning:
- Roll Over Protective Structures
(70 FR 41127 - 41161, July 20, 2006)
The Federal Register (FR), as cited above, contains both technical and economic discussions that explain the basis for each change.
For additional information, please contact:
Bureau of Education, Training and Technical Assistance
Occupational Safety and Health Division
North Carolina Department of Labor
1101 Mail Service Center
Raleigh, North Carolina 27699-1101
For additional information regarding North Carolina’s process of adopting federal OSHA Standards verbatim, please contact:
A. John Hoomani, General Counsel
North Carolina Department of Labor
Legal Affairs Division
1101 Mail Service Center
Raleigh, NC 27699-1101
PROPOSED RULES
21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
467
Note from the Codifier: The notices published in this Section of the NC Register include the text of proposed rules. The agency
must accept comments on the proposed rule(s) for at least 60 days from the publication date, or until the public hearing, or a
later date if specified in the notice by the agency. If the agency adopts a rule that differs substantially from a prior published
notice, the agency must publish the text of the proposed different rule and accept comment on the proposed different rule for 60
days.
Statutory reference: G.S. 150B-21.2.
TITLE 11– DEPARTMENT OF INSURANCE
Notice is hereby given in accordance with G.S. 150B-21.2 that
the North Carolina Department of Insurance intends to amend
the rules cited as 11 NCAC 06A .0802 - .0803, .0806 - .0807,
and .0811.
Proposed Effective Date: January 1, 2007
Public Hearing:
Date: October 3, 2006
Time: 10:00 a.m.
Location: 3rd Floor Hearing Room, Dobbs Building, 430 N.
Salisbury Street, Raleigh, NC
Reason for Proposed Action: Amend continuing education
requirements for licensees and course instructors.
Procedure by which a person can object to the agency on a
proposed rule: The Department of Insurance will accept
written objections to these rules until the expiration of the
comment period on November 14, 2006.
Comments may be submitted to: Ellen K. Sprenkel, 1201 Mail
Service Center, Raleigh, NC 27699-1201, phone (919) 733-
4529, fax (919) 733-6495, email esprenke@ncdoi.net.
Comment period ends: November 14, 2006
Procedure for Subjecting a Proposed Rule to Legislative
Review: If an objection is not resolved prior to the adoption of
the rule, a person may also submit written objections to the
Rules Review Commission. If the Rules Review Commission
receives written and signed objections in accordance with G.S.
150B-21.3(b2) from 10 or more persons clearly requesting
review by the legislature and the Rules Review Commission
approves the rule, the rule will become effective as provided in
G.S. 150B-21.3(b1). The Commission will receive written
objections until 5:00 p.m. on the day following the day the
Commission approves the rule. The Commission will receive
those objections by mail, delivery service, hand delivery, or
facsimile transmission. If you have any further questions
concerning the submission of objections to the Commission,
please call a Commission staff attorney at 919-733-2721.
Fiscal Impact:
State
Local
Substantive (>$3,000,000)
None
CHAPTER 06 - AGENT SERVICES DIVISION
SUBCHAPTER 06A - AGENT SERVICES DIVISION
SECTION .0800 - CONTINUING EDUCATION
11 NCAC 06A .0802 LICENSEE REQUIREMENTS
(a) Life and health licensees shall obtain 12 ICECs during each
calendar year in approved life and health courses. Each person
holding a life and health license shall complete a continuing
education course on ethics within two years after January 1,
2008, and every two years thereafter. The course shall comprise
three ICECs and shall be approved by the Commissioner.
(b) Property and liability licensees shall obtain 12 ICECs during
each calendar year in approved property and liability courses.
Each person holding a property and liability license shall
complete a continuing education course on ethics within two
years after January 1, 2008, and every two years thereafter. The
course shall comprise three ICECs and shall be approved by the
Commissioner.
(c) Any person holding more than one license to which this
Section applies shall obtain 18 ICECs during each calendar year,
including a minimum of six ICECs for each kind of license.
(d) An instructor shall receive the maximum ICECs awarded to
a student for the course.
(e) Licensees shall not receive ICECs for the same course more
often than one time in any three calendar year period.
(f) Licensees do not have to obtain ICECs for the calendar year
in which they are initially licensed.
(g) Licensees shall receive ICECs for a course only for the
calendar year in which the course is completed. Any course
requiring an examination shall not be considered completed until
the licensee passes the examination.
(h) Licensees shall maintain records of all ICECs for three years
following the obtaining of such ICECs, which records shall be
available for inspection upon the Commissioner's request.
(i) Nonresident licensees who meet continuing education
requirements in their home states meet the continuing education
requirements of this Section. Nonresident licensees whose home
states have no continuing education requirements shall meet the
requirements of this Section.
(j) Licensees are exempt from the requirements of this Section if
they:
(1) are age 65 or older; and
(2) have been continuously licensed in the line of
insurance for at least 25 years; and
(A) either hold a nationally recognized
professional designation for the line
PROPOSED RULES
21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
468
of insurance. Acceptable
designations include those listed in 11
NCAC 06A .0803(a) and (b); or
(B) certify to the Department of Insurance
annually they are inactive agents
agency owners who neither solicit
applications for insurance nor take
part in the day to day operation of
thean agency.
(k) Any licensee holding more than one license to which this
Section applies and qualifies for exemption under Paragraph (j)
of this Rule for one license type mustshall obtain a minimum of
six ICECs in each calendar year for the license type not
exempted.
(l) Courses completed prior tobefore the issue date of a new
license do not meet the requirements of this Section for that new
license.
(m) No credit will be given for courses taken before they have
been approved by the Department.
(n) Persons who hold adjuster licenses shall obtain 12 ICECs
during each calendar year in approved property and liability
courses. As used in this Section, "licensee" includes a person
who holds an adjuster license and who is required to comply
with this Section.
(o) Each agent holding an active surplus lines license with an
effective date before January 1, 1994, must take a surplus lines
course as part of the agent's 1994 property and liability
continuing education requirement. Each agent issued a surplus
lines license in 1994 must take a surplus lines course as part of
the agent's 1995 property and liability continuing education
requirement.
(o) Each person holding a property and liability, personal lines,
or adjuster license shall complete a continuing education course
on flood insurance and the National Flood Insurance Program
within two years after January 1, 2008, and every four years
thereafter. The course shall comprise three ICECs and shall be
approved by the Commissioner.
Authority G.S. 58-2-40; 58-33-130.
11 NCAC 06A .0803 COURSES SPECIFICALLY
APPROVED
(a) Courses that are necessary to obtain the following nationally
recognized designations are approved as they exist on December
1, 1990, for 18 ICECs upon successful completion of the
national examination for each part:
(1) Accredited Advisor in Insurance (AAI);
(2) Associate in Claims (AIC);
(3) Associate in Loss Control Management
(ALCM);
(4) Associate in Risk Management (ARM);
(5) Associate in Underwriting (AU);
(6) Certified Employees Benefit Specialist
(CEBS);
(7) Chartered Financial Consultant (ChFC);
(8) Chartered Life Underwriter (CLU);
(9) Chartered Property and Casualty Underwriter
(CPCU);
(10) Fellow Life Management Institute (FLMI);
(11) General Insurance (INS);
(12) Life Underwriter Training Council Fellow, 26
week (LUTCF);
(13) Certified Financial Planner (CFP).
(b) Courses that are necessary to obtain the following nationally
recognized designations are approved as they exist on December
1, 1990, for an amount of ICECs to be determined by the
Commissioner's evaluation process: Commissioner under this
Section.
(1) Agency Management Training Course
Graduate;
(2) Certified Insurance Counselor (CIC);
(3) Certified Insurance Service Representative
(CISR);
(4) Certified Professional Service Representative
(CPSR);
(5) Fraternal Insurance Counselor (FIC);
(6) Health Insurance Associate (HIA);
(7) Life Underwriter Training Council Fellow, 13
weeks (LUTCF);
(8) Registered Health Underwriter (RHU).
(c) Courses that are taught by a college or university that is
accredited by the Southern Association of Colleges and Schools
are approved as they exist on December 1, 1990, for a number of
ICECs to be determined by the Commissioner's evaluation
process. Commissioner under this Section.
(d) Each course provider or designee shall submit a fee of one
dollar ($1.00) per approved ICEC per individual that
successfully completes the course.
(e)(d) Any course prepared by the Commissioner is approved as
a component of each resident licensee's continuing education
requirement for a number of ICECs to be determined by the
Commissioner's evaluation process. Commissioner under this
Section.
Authority G.S. 58-2-40; 58-33-130.
11 NCAC 06A .0806 ATTENDANCE
(a) If six or fewer ICECs or less are assigned to a course, the
licensee mustshall attend 100 percent of the course to receive
any ICECs.
(b) If more than six ICECs are assigned to a course, and the
licensee passes the exam and attends at least 80 percent of the
course, the licensee shall receive 100 percent of the ICECs
assigned to the course.
(c) If more than six ICECs are assigned to a course, and the
licensee does not pass the exam but attends at least 80 percent of
the course, the licensee shall receive 80 percent of the ICECs
assigned to the course.
(d) An instructor may conduct a class with up to 30 students
with no additional assistance. For classes with attendance
exceeding 30 students, one assistant to the instructor is required
for each additional 50 students or any portion thereof. Each
assistant shall be physically present in the classroom during the
instructor's presentation.
(e) Providers conducting classes outside of North Carolina or
bordering states where at least 25% of the students are
requesting North Carolina ICECs shall make arrangements and
PROPOSED RULES
21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
469
pay all expenses for a Department continuing education monitor
to attend.
Authority G.S. 58-2-40; 58-33-130.
11 NCAC 06A .0807 HARDSHIP
A licensee may appeal for relief to the Commissioner by
Licensees shall make appeals for extensions of time under G.S.
58-33-130(c) on or before January 1530 of the year immediately
following the calendar year forin which the minimum required
ICECs were not obtained. Upon a finding of reasonable cause,
the Commissioner may extend the time for the licensee to
complete the requirement.
Authority G.S. 58-2-40; 58-33-130.
11 NCAC 06A .0811 SANCTIONS FOR
NONCOMPLIANCE
(a) This Rule establishes sanctions for licensees who fail to
complete their annual continuing education requirements and for
licensees, course providers, course provider personnel, course
presenters, course presenter personnel, and course instructors
who falsify any records or documents in connection with the
continuing education program or who do not comply with G.S.
58-33-125 58-33-130, G.S. 58-33-132, or this Section.
(b) The failure of a licensee to meet the annual continuing
education requirement shall result in the cancellation of his or
her license for the subsequent calendar year. The license will be
reinstated upon proof that the licensee has completed the
continuing education requirements, and subsequently passed the
agent's licensing examination by July 1 of each year of
cancellation. If requirements for reinstatement are not
completed by July 1, the licensee will be required to complete
the full pre-licensing education requirement and pass the agent's
licensing examination before the license will be reinstated. If
the license of any person lapses under G.S. 58-33-130(c), the
Commissioner shall reinstate the license when the person has
completed the continuing education requirements. If the person
does not satisfy the requirements for licensure reinstatement by
July 1 of that year, the person shall complete the appropriate
prelicensing education requirement and pass the appropriate
licensing examination, at which time the Commissioner shall
reinstate the person's license.
(c) The Commissioner may suspend, revoke, or refuse to renew
a license for any of the following causes:
(1) Failure Failing to timely respond to insurance
department Department inquiries, including
continuing education audit requests. requests,
within seven calendar days after the receipt of
the inquiry or request.
(2) Requesting an extension or waiver under false
pretenses.
(3) Refusing to cooperate with insurance
departmentDepartment employees in an
investigation or inquiry.
(d) The Commissioner may suspend, revoke, or refuse to renew
a course provider's, presenter's or instructor's authority to offer
courses for any of the following causes:
(1) Advertising that a course is approved before
the Commissioner has granted such approval
in writing.
(2) Submitting a course outline with material
inaccuracies, either in length, presentation
time, or topic content.
(3) Presenting or using unapproved material in
providing an approved course.
(4) Failing to conduct a course for the full time
specified in the approval request submitted to
the Commissioner.
(5) Preparing and distributing certificates of
attendance or completion before the course has
been approved.
(6) Issuing certificates of attendance or
completion prior to before the completion of
the course.
(7) Failing to issue certificates of attendance or
completion to any licensee who satisfactorily
completes a course.
(8) Failing to promptly notify the Commissioner
in writing of suspected or known improper
activities including attendance and attention
irregularities in writing. violations of the North
Carolina General Statutes or Administrative
Code within 30 days after suspecting or
knowing about the violations.
(9) Any violation of Violating the North Carolina
General Statutes or Administrative Code.
(10) Failing to diligently monitor attendance and
attention of attendees.
(e) Course providers and presenters are responsible for the
activities of persons conducting, supervising, instructing,
proctoring, monitoring, moderating, facilitating, or in any way
responsible for the conduct of any of the activities associated
with the course.
(f) In addition, the Commissioner may require any one of the
following upon a finding of a violation of this Section:
(1) Refunding all course tuition and fees to
licensees.
(2) Providing licensees with a suitable course to
replace the course that was found in violation.
(3) Withdrawal of approval of courses offered by
such the provider, presenter, or instructor for a
period determined by the Commissioner.
instructor.
(g) Each nonresident licensee shall certify to the Commissioner
that the licensee has complied with the continuing education
requirements in the licensee's home state and pay a
recertification fee by March 1 of each year. If the license lapses
under G.S. 58-33-125(c) and an extension of time is not sought,
the Commissioner shall reinstate the license when the licensee
has completed the home state continuing education requirements
and paid a recertification fee.
Authority G.S. 58-2-40; 58-33-130; 58-33-132; 58-33-125(a).
PROPOSED RULES
21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
470
TITLE 12 – DEPARTMENT OF JUSTICE
Notice is hereby given in accordance with G.S. 150B-21.2 that
the Private Protective Services Board intends to amend the rules
cited as 12 NCAC 07D .0203, .0601.
Proposed Effective Date: January 1, 2007
Public Hearing:
Date: September 30, 2006
Time: 2:00 p.m.
Location: Conference Room, 1631 Midtown Place, Suite 104,
Raleigh, NC 27609
Reason for Proposed Action:
12 NCAC 07D .0203 - The Board has determined that if a
licensee is in good standing and has maintained a license at
least two years and then allows the license to expire, the license
may be reissued if application is made within three years of the
expiration date.
12 NCAC 07D .0601 – The Board has determined that P.S.E
Training Schools have altered their training curriculum such
that few schools provide more than 160 hours training.
Procedure by which a person can object to the agency on a
proposed rule: Comments and objections to the proposed rule
will be accepted through November 14, 2006. Comments and
objections must be mailed to Terry Wright, Director, Private
Protective Services Board, 1631 Midtown Place, Suite 104,
Raleigh, NC 27609.
Comments may be submitted to: Terry Wright, Director, 1631
Midtown, Suite 104, Raleigh, NC 27609, phone (919)875-3611
Comment period ends: November 14, 2006
Procedure for Subjecting a Proposed Rule to Legislative
Review: If an objection is not resolved prior to the adoption of
the rule, a person may also submit written objections to the
Rules Review Commission. If the Rules Review Commission
receives written and signed objections in accordance with G.S.
150B-21.3(b2) from 10 or more persons clearly requesting
review by the legislature and the Rules Review Commission
approves the rule, the rule will become effective as provided in
G.S. 150B-21.3(b1). The Commission will receive written
objections until 5:00 p.m. on the day following the day the
Commission approves the rule. The Commission will receive
those objections by mail, delivery service, hand delivery, or
facsimile transmission. If you have any further questions
concerning the submission of objections to the Commission,
please call a Commission staff attorney at 919-733-2721.
Fiscal Impact:
State
Local
Substantive (>$3,000,000)
None
12 NCAC 07D .0203 RENEWAL OR RE-ISSUE OF
LICENSES AND TRAINEE PERMITS
(a) Each applicant for a license or trainee permit renewal shall
submit an original and one copy of a renewal form. This form
shall be submitted to the administrator not less than 30 days
prior to expiration of the applicant's current license or trainee
permit and shall be accompanied by:
(1) a head and shoulders color photograph of the
applicant of a quality sufficient for
identification, one inch by one inch in size and
taken within six months of the application;
(2) statements of the result of a local criminal
history records search by the city-county
identification bureau or clerk of superior court
in each county where the applicant has resided
within the immediate preceding 12 months;
and
(3) the applicant's renewal fee; and
(4) proof of liability insurance as set out in G.S.
74C-10(e).
(b) If a licensee in good standing with the Board has maintained
a license at least two years and then allows the license to expire,
the license may be re-issued if application is made within ten
three years of the expiration date and the following
documentation is submitted to the Board:
(1) an Application For Reinstatement of an
Expired License;
(2) one set of classifiable fingerprints on an
applicant fingerprint card;
(3) one head and shoulders photograph(s) of the
applicant of a quality sufficient for
identification, one inch by one inch in size and
taken within six months of the application;
(4) statements of the result of a local criminal
history records search by the city-county
identification bureau or clerk of superior court
in each county where the applicant has resided
within the immediate preceding 60 months;
(5) the applicant's non-refundable application fee;
(6) proof of liability insurance as set out in G.S.
74C-10(e); and
(7) a separate check or money order made payable
to the State Bureau of Investigations to cover
criminal record checks performed by the State
Bureau of Investigations.
Authority G.S. 74C-5; 74C-8; 74C-9.
12 NCAC 07D .0601 EXPERIENCE REQUIREMENTS
FOR A P.S.E. LICENSE
(a) In addition to the requirements of 12 NCAC 07D .0200,
applicants for a P.S.E. license shall successfully complete a
course of formal instruction at any P.S.E. school approved by the
Board.
(b) A P.S.E. school must consist of not less than 160 hours of
actual classroom instruction in psychological stress evaluation.
Authority G.S. 74C-5.
PROPOSED RULES
21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
471
TITLE 13 – DEPARTMENT OF LABOR
Notice is hereby given in accordance with G.S. 150B-21.2 that
the N.C. Department of Labor/ Wage and Hour Bureau intends
to amend the rules cited as 13 NCAC 12 .0202, .0304 - .0307,
.0402 - .0405, .0601, .0703, .0804 and repeal the rule cited as 13
NCAC 12 .0409.
Proposed Effective Date: January 1, 2007
Public Hearing:
Date: October 4, 2006
Time: 10:00 a.m.
Location: 4 W. Edenton Street, Raleigh, NC 27699 (Room 205)
Reason for Proposed Action: Due to changes made during the
2005 Session of the North Carolina General Assembly, certain
administrative rule changes are needed in order to ensure that
the North Carolina Administrative Code remains consistent with
the Wage and Hour Act.
Procedure by which a person can object to the agency on a
proposed rule: Objections to the proposed rules may be
submitted, in writing, to Erin T. Gould, Assistant Rulemaking
Coordinator, via United States mail at the following address:
1101 Mail Service Center, Raleigh, North Carolina 27699-1101;
or via facsimile at (919) 733-4235. Objections may also be
submitted during the public hearings conducted on these rules,
which are noticed above. Objections shall include the specific
rule citation(s) for the objectionable rule(s), the nature of the
objection(s), and the complete name(s) and contact information
for the individual(s) submitting the objection. Objections must
be received by 5:00 p.m. on November 14, 2006.
Comments may be submitted to: Erin T. Gould, Assistant
Rulemaking Coordinator, 1101 Mail Service Center, Raleigh,
North Carolina 27699-1101, phone (919) 733-0368, fax (919)
733-4235, email erin.gould@nclabor.com
Comment period ends: November 14, 2006
Procedure for Subjecting a Proposed Rule to Legislative
Review: If an objection is not resolved prior to the adoption of
the rule, a person may also submit written objections to the
Rules Review Commission. If the Rules Review Commission
receives written and signed objections in accordance with G.S.
150B-21.3(b2) from 10 or more persons clearly requesting
review by the legislature and the Rules Review Commission
approves the rule, the rule will become effective as provided in
G.S. 150B-21.3(b1). The Commission will receive written
objections until 5:00 p.m. on the day following the day the
Commission approves the rule. The Commission will receive
those objections by mail, delivery service, hand delivery, or
facsimile transmission. If you have any further questions
concerning the submission of objections to the Commission,
please call a Commission staff attorney at 919-733-2721.
Fiscal Impact:
State
Local
Substantive (>$3,000,000)
None
CHAPTER 12 – WAGE AND HOUR
SECTION .0200 - SUBMINIMUM WAGES
13 NCAC 12 .0202 HANDICAPPED WORKER
CERTIFICATION
(a) A "handicapped worker" means an individual whose earning
capacity is impaired by age or physical or mental deficiency or
injury for the work he is to perform.
(b) An application for the issuance of a handicapped worker
certificate establishing a subminimum wage rate for an
individual for a particular job may be made by an employer with
the DirectorAdministrator of the Wage and Hour Division,
Bureau and must include:
(1) the name, address and nature of the business of
the employer;
(2) a description of the occupation at which the
worker is to be employed;
(3) the nature of the worker's disability and its
relation to his work;
(4) the wage the employer proposes to pay the
worker (as a percentage of the State minimum
wage);
(5) signatures of the employer and the worker; and
(6) certification of the applicant's handicap by the
Division of Vocational Rehabilitation Services
of the Department of Human Resources.Health
and Human Services.
(c) If the proposed subminimum wage is less than 50 percent of
the applicable minimum wage, the application and evidence
must establish that the individual is multi-handicapped or so
severely impaired that his earning or productive capacity would
not yield wages equal to at least 50 percent of the minimum
wage if compensated at wage rates which are commensurate
with those for nonhandicapped non-handicapped workers in
industry in the vicinity for essentially the same type, quality, and
quantity of work.
(d) To determine whether the facts justify the issuance of a
certificate, the DirectorAdministrator may require the
submission of additional information and may require the
worker to take a medical examination.
(e) A Handicapped Worker Certificate will be issued by the
DirectorAdministrator only if a proper application has been
made and the facts show:
(1) A special subminimum wage is necessary to
prevent curtailment of the worker's
opportunities for employment.
(2) The earning or productive capacity of the
worker for the work he is to perform is
impaired by age or physical or mental
deficiency or injury.
(3) The wage rate requested reflects adequately
the individual worker's earning or productive
capacity and is not less than 50 percent of the
applicable minimum wage, unless a lower rate
PROPOSED RULES
21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
472
is clearly justified in accordance with (c) of
this Rule.
(4) In an establishment or a vicinity where
nonhandicappednon-handicapped employees
are employed at piece rates in the same
occupation, the handicapped worker will be
paid at least the same piece rates or at the
hourly rate specified in the certificate,
whichever is greater.
(f) When a certificate is issued, the subminimum wage rate will
be established as a percentage of the State minimum wage, so
that the handicapped worker's wage rate will adjust
automatically with changes in the State minimum wage without
reissuance of a new certificate. Copies of the certificate shall be
transmitted to the employer and the worker. The employer shall
keep, maintain and have available for inspection a copy of the
certificate.
(g) A certificate may not be issued retroactively and will be
issued for a period of three years, subject to renewal by the
Director. Administrator. The terms of a certificate, including
wage rate, may be amended by the DirectorAdministrator upon
written notice to the parties concerned, if the facts justify such
an amendment. A certificate expires automatically when there is
a substantial change in the job description, employment is
terminated, or due to a change in circumstances the Director
Administrator determines that the certificate or the subminimum
wage rate set by the certificate no longer complies with the
requirements of this Rule.
(h) Any person aggrieved by an action of the
DirectorAdministrator pursuant to this Rule may, within 15 days
after such action, file with the Director Administrator a written
petition for review setting forth the grounds. The Commissioner
of Labor or his designated hearing officer may conduct a hearing
and offer aggrieved persons the opportunity to present data and
views pursuant to 13 NCAC Subchapter 1B. Chapter 150B,
Article 3 of the North Carolina General Statutes. Any person
adversely affected by the decision of the Commissioner or his
designee may appeal by filing a written petition for a contested
case hearing with the Office of Administrative Hearings (OAH)
under Chapter 150B, Article 3 of the North Carolina General
Statutes.
(i) Certificates providing subminimum wage rates for sheltered
workshops for the handicapped may be issued in accordance
with the rules and regulations promulgated under the F.L.S.A.
regulating and allowing for the issuance of such certificates.
Authority G.S. 95-25.3; 95-25.15; 95-25.17; 95-25.19.
SECTION .0300 – WAGES
13 NCAC 12 .0304 WITHHOLDING OF WAGES
(a) The employer shall furnish the employee an itemized
statement indicating the amount and purpose of all deductions,
diversions, payments or withholding of wages for each pay
period in which deductions or recoupments are made.
(b) A repayment in excess of the statutory limitation prescribed
in G.S. 95-25.10, is permitted if the repayment is voluntary. A
repayment is voluntary if it is made without fraud,
misrepresentation, undue influence, duress, or coercion.
(c) In the case of employees for whom there is no hourly
record-keeping requirement, an average number of hours worked
per pay period may be agreed upon in writing in advance by the
employer and each employee and may be used for calculating
the amount of protected wages each pay period. Such
agreements are subject to modification as necessary to reflect
permanent and substantial changes in the average number of
hours worked per pay period.
(b) "Criminal process," as that term is used in G.S. 95-25.8(e),
means any citation, criminal summons, warrant for arrest, or
order for arrest, issued by a justice, judge, magistrate, clerk of
court, or law enforcement officer for the purpose of requiring a
person to appear in court and answer to allegations of a cash
shortage, inventory shortage, or damage to an employer's
property based upon a showing of probable cause supported by
oath or affirmation.
Authority G.S. 95-25.8; 95-25.11; 95-25.13; 95-25.19.
13 NCAC 12 .0305 AUTHORIZATION FOR
WITHHOLDING OF WAGES
(a) An employer may withhold or divert a portion of an
employee's wages without the employee's authorization only
when the employer is required or empowered to do so by North
Carolina or federal law. A valid authorization by an employee is
required in all other circumstances for an employer to make a
deduction from an employee's wages. Two types of authorization
are permitted:
(1) A specific authorization shall be used when
the amount or rate of the proposed deduction is
known and agreed to at the time the employee
signs the authorization.
(2) A blanket authorization shall be used when the
amount of the proposed deduction is not
known and agreed to at the time the employee
signs the authorization.
(b) An authorization by an employee, to be valid, shall:
(1) be written;
(2) be signed by the employee on or before the
payday for the pay period for which the
deduction is being made;
(3) show the date of signing by the employee;
(4) state the reason for the deduction; and
(5) if it is a specific authorization, state the
specific dollar amount or percentage of wages
to be deducted from each paycheck and the
number of paychecks or length of time for
which the deduction is authorized.
(c) A specific authorization may be for one or more paychecks
and shall state the dollar amount or percentage of wages which
the employee agrees may be deducted from each paycheck.
Employers shall give employees a reasonable opportunity to
withdraw specific authorizations if such deductions are for their
convenience. Deductions for the convenience of the employees
include, but are not limited to, such things as savings plans,
credit union installments, savings bonds, union or club dues,
uniform rental, uniform cleaning, parking and charitable
contributions.
PROPOSED RULES
21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
473
(d) An employer shall not make a deduction under a blanket
authorization until the employee has been given:
(1) Advance notice of the specific amount of the
proposed deduction. For purposes of
deductions involving cash shortages, inventory
shortages, or loss or damage to an employer's
property, advance notice shall be at least the
seven day period prescribed in G.S. 95-25.9.
(2) A "reasonable opportunity to withdraw" the
authorization before the deduction is made. A
reasonable opportunity to withdraw a blanket
authorization shall be at least three calendar
days from the date of the employer's notice of
the specific amount of the deduction to be
taken.
(e)(a) When an authorization is required by the Act, the
monetary limitations and time requirements specified in G.S.
95-25.8, 95-25.9 and 95-25.10 95-25.8 of the Wage and Hour
Act apply and shall not be waived.
(b) Deductions for the convenience of the employee, as that
term is used in G.S. 95-25.8, include savings plans, credit union
installments, savings bonds, union or club dues, uniform rental
or cleaning not required by the employer, parking and charitable
contributions.
(c) A "reasonable opportunity to withdraw," as that term is used
in G.S. 95-25.8(a), shall be at least three calendar days from the
date of the employer's notice of the actual amount to be deducted
or the employee's written notice of withdrawal of the
authorization.
(f)(d) In accordance with G.S. 95-25.8(d), Advances advances
of wages to the employee or to a third party at the employee's
request are considered to be prepayment of wages. Advances of
wages to a third party at the employee's request are also
considered to be prepayment of wages. A dated receipt, signed
by the employee, for the advance of wages, shall be sufficient to
show that the advance was requested and made. No withholding
authorizations are required by G.S. 95-25.8(2) when the
employer deducts for the advanced wages.
(g)(e) In the absence of an executed loan document, the
principal of a loan Loans from an employer to an employee
isthat are considered to be an advance of wages.wages pursuant
to G.S. 95-25.8(d) Such loans may include credit advanced by
the employer to an employee at the employee's request for
purchasing from the employer items not primarily for the benefit
of the employer. employer and personal usage of the employer's
property when designated for business use only.Deductions for
interest and other related charges require written authorization in
accordance with these rules. Personal loans from a supervisor to
a subordinate or loans made by third parties to an employee with
payroll deduction arrangements are not an advance of wages.
(h)(f) An overpayment of wages to an employee as a result of a
miscalculation of wages or other bona fide error may be treated
as an advance of wages by the employer. If the an employer
underpays wages to an employee as a result of a miscalculation
of wages or other bona fide error, the employer shall pay any
such underpayment owed as soon as possible upon the discovery
of the error and no later than the next regularly scheduled pay
day, along with accrued interest at the legal rate set forth in G.S.
24-1 from the date the wages first became due.
(i)(g) Authorizations for deductions that are not permitted by
law are invalid. For example:
(1) G.S. 97-21 invalidates agreements by an
employee to pay any portion of a premium
paid by his or her employer to a workers'
compensation insurance carrier;
(2) 13 NCAC 07F .0101(a)(2) requires the
employer to provide, at no cost to the
employee, all personal protective equipment
which the employee does not wear off the
jobsite for use off the job.
If an employer withholds or diverts wages for purposes not
permitted by law, the employer shall be in violation of G.S. 95-
25.6 or G.S. 95-25.7, or both, even if the employee authorizes
the withholding in writing pursuant to G.S. 95-25.8(2),95-
25.8(a), because that authorization is invalid.
(j)(h) An employer may obtain a written authorization pursuant
to G.S. 95-25.8(2)(a)95-25.8(a) and include in the authorization
a provision for deducting the balance of the unpaid amount from
the employee's paycheck in the event the employee separates
before the full amount has been collected. If the employer
obtains such an authorization, the employer may deduct as much
of the balance possible from the final paycheck without having
to give the employee notice of the amount and a reasonable
opportunity to withdraw his or her authorization as required by
G.S. 95-25.8(2)(b),95-25.8(a), subject to the withholding
limitations of G.S. 95-25.10.95-25.8(b).
(k)(i) A wage credit in the form of tips in accordance with Rule
.0303 of this Section, or the reasonable costs of meals, lodging
or other facilities in accordance with Rule .0301 of this Section,
is not a withholding of wages and does not require written
authorization pursuant to G.S. 95-25.8(2).95-25.8(a). If the
employer does not include in the specific authorization an
express provision to deduct the balance upon an employee's
separation, then an employer shall not deduct from the final
paycheck an unpaid balance which is greater than the specific
amount or percentage authorized unless an additional
authorization is obtained.
(l) An employer is permitted to establish an escrow or bond
account funded by an employee's wages to recover amounts
owed to the employer, as long as the employer obtains a valid
authorization from the employee pursuant to G.S. 95-25.8(2)
before diverting wages to such an account. An employer must
also obtain a valid authorization from the employee before
making a deduction from the account. Upon discontinuance of
employment for any reason, remaining funds shall be returned to
the employee.
Authority G.S. 95-25.8; 95-25.11; 95-25.13; 95-25.19.
13 NCAC 12 .0306 VACATION PAY
(a) Employers shall notify employees of the employer's policies
and practices concerning vacation pay as follows:
(1) Orally or in writing at the time of hiring;
(2) By making a copy of the policies and practices
available to them in writing or through a
posted notice maintained in a place accessible
to the employees; and
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21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
474
(3) Before the effective date of any changes, in
writing or through a posted notice maintained
in a place accessible to the employees.
(b)(a) All vacation policies and practices shall address:
(1) How and when vacation is earned so that the
employees know the amount of vacation to
which they are entitled;
(2) Whether or not vacation time may be carried
forward from one year to another, and if so, in
what amount;
(3) When vacation time must be taken;
(4) When and if vacation pay may be paid in lieu
of time off; and
(5) Under what conditions and in what amount
vacation pay will be paidforfeited upon
discontinuation of employment. employment
for any reason.
(c)(b) Ambiguous policies and practices shall be construed
against the employer and in favor of employees.
(d)(c) Vacation benefits granted under a policy which does not
establish an earning period cannot be reduced or eliminated as a
result of a change in policy. An example of such a policy is:
"Employees are entitled to one week of vacation per calendar
year." If a policy which establishes an earning period or accrual
rate is changed, employees are entitled to a pro rata share of the
benefits earned under the original policy through the effective
date of the change and of the benefits earned under the new
policy from the effective date forward, so long as the earning
criteria are met under both policies.
Authority G.S. 95-25.2; 95-25.12; 95-25.13; 95-25.19.
13 NCAC 12 .0307 BONUSES, COMMISSIONS AND
OTHER FORMS OF WAGE CALCULATION
(a) Employers may pay wages based on bonuses, commissions
or other forms of calculation as infrequently as annually, if the
employees are so notified before earning such wages.
(b) Employers shall notify employees of the employers' policies
and practices concerning pay, wages based on bonuses,
commissions, or other forms of calculation as follows and in
accordance with Rule .0801 of this Chapter:
(1) Orally or in writing at the time of hiring;
(2) By making a copy of the policies and practices
available to them in writing or through a
posted notice maintained in a place accessible
to the employees; and,
(3) Before the effective date of any changes, in
writing or through a posted notice maintained
in a place accessible to the employees.wage
calculation.
(c) Ambiguous policies and practices shall be construed against
the employer and in favor of employees.
(d) All policies or practices relating to bonuses, commissions, or
other forms of calculation wages shall address:
(1) How and when bonuses, commissions or other
forms of calculation wages are earned so that
the employees know the amount of bonuses,
commissions or other forms of calculation
wages to which they are entitled; and
(2) Under what conditions and in what amount
bonuses, commissions or other forms of
calculation wages will be paid upon
discontinuation of employment.
(e) Wages computed under a bonus, commission, or other forms
of calculation policy or practice which does not establish
specific earning criteria cannot be reduced or eliminated as a
result of a change in policy or practice. An example of such a
policy is: "Employees earn commissions of xx% on all 'sales'
(where sales are not defined by the employer)." If the employer
changes a policy or practice which establishes specific earning
criteria, the employee is entitled to the bonus, commission or
other forms of calculation wages earned under the original
policy through the effective date of the change and is entitled to
the bonus, commission or other forms of calculation wages
earned under the new policy from the effective date forward, so
long as the earning criteria are met under both policies.
Authority G.S. 95-25.6; 95-25.7; 95-25.13; 95-25.19.
SECTION .0400 - YOUTH EMPLOYMENT
13 NCAC 12 .0402 APPLICATION FOR A YOUTH
EMPLOYMENT CERTIFICATE
(a) A youth may obtain a youth employment certificate may be
obtained:from
(1) electronically from the Department of Labor;
or
(2) from the county director of social services'
office in the county in which the youth resides
or the county in which the youth intends to
work, or from a designee outside the social
services' office in the county in which the
youth resides or the county in which the youth
intends to work who has been approved to
issue youth employment certificates pursuant
to 13 NCAC 12 .0407.
(b) Proof of Age.
(1) If the youth employment certificate is obtained
electronically, the employer shall verify the
age of the youth.
(2) If the youth employment certificate is not
obtained electronically, The the youth must
provide proof of age by means of one of the
following:
(1)(A) A birth certificate;
(2)(B) Evidence from the bureau of vital
statistics in the state in which the
youth was born;
(3)(C) Any state driver's license, learner's
permit, or state-issued identification
card;
(4)(D) Passport;
(5)(E) School records or insurance records;
or
(6)(F) Other documentary evidence
determined as equivalent by the Wage
and Hour Office.Bureau.
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21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
475
(c) The youth shall obtain a youth employment certificate form
on which the youth and the employer must supply the following
information:
(1) Youth's name, address, phone number, sex,
age and birth date;
(2) Employer's company name, type of business,
address and phone number; and
(3) Job description.
(d) The A youth employment certificate obtained pursuant to
Paragraph (a) of this Rule shall not be valid unless it is must be
signed by the youth, youth and by a parent, guardian, custodian,
or other person standing in place of a parent as defined in 29
CFR 570.126, loco parentis and by the employer. In the event
that a final decree of emancipation has been issued for the youth
by a court of competent jurisdiction pursuant to G.S. 7B, Article
35, the youth may sign the certificate without the approval of a
parent, guardian or custodian, or other person standing in place
of a parent as defined in 29 CFR 570.126 loco parentis.
(e) A youth may obtain a youth employment certificate
electronically from the Department of Labor, if available. The
Department shall use electronic means to verify the age and
permissibility of employment based on type of employment and
prohibitions in G.S. 95-25.5 and the child labor provisions of the
F.L.S.A. Electronically issued youth employment certificates
shall not be valid until signed as set forth in Paragraph (d) of this
Rule.
Authority G.S. 95-25.5; 95-25.19.
13 NCAC 12 .0403 REVIEW: ISSUANCE AND
MAINTENANCE OF CERTIFICATES
(a) The county director of social services, approved designee or
the Department of Labor shall review the youth employment
certificate to see that it is complete and shall ascertain the age of
the youth by the means prescribed in Rule .0402 of this Section
and the permissibility of employment based on type of
employment and prohibitions in G.S. 95-25.5 and the child labor
provisions of the F.L.S.A.
(b) The county director of social services, approved designee or
Department of Labor shall sign, date and issue the certificate.
The employer's copy of the certificate shall be given to the
youth. Certificates shall not be issued if:
(1) The proposed employment does not comply
with all statutory requirements and
prohibitions, and all rules and regulations
promulgated under this Section; or
(2) The proposed employment will be in violation
of the F.L.S.A. and all rules promulgated
thereunder.
(c) The county director of social services or Department of
Labor shall send one copy of each certificate to the Wage and
Hour Bureau within one week of issuance, and shall maintain
one copy of the each certificate on file for two years following
the date of issuance. and shall send one copy to the Wage and
Hour Office at the end of each week.
(d) The employer's copy of the youth employment certificate
must be given to the employer by the youth on or before the first
day of employment. The employer shall not employ a youth
until the employer has received its copy of the issued certificate.
The employer shall maintain the certificate on record where it is
readily accessible to any person authorized to inspect or
investigate youth employment. The employer shall maintain the
certificate on record so long as the youth is employed thereunder
and for two years after the employment terminates.
(e) The employer or youth may request a review of the denial of
a certificate by written or oral request to the Wage and Hour
Office. Bureau. Appeals of the review decisions rendered must
be made in writing within 15 days to the Wage and Hour
Administrator who shall issue a written decision. Requests for
appeal of the Administrator's decision must be addressed to the
Office of Administrative Hearings in accordance with G.S.
150B, Article 3. Any person adversely affected by the
Administrator's decision may appeal by filing a written petition
for a contested case hearing with the Office of Administrative
Hearings (OAH) under Chapter 150B, Article 3 of the North
Carolina General Statutes.
Authority G.S. 95-25.5; 95-25.14; 95-25.15.
13 NCAC 12 .0404 WAIVER
(a) When a proper application for a waiver of any youth
employment provision is received, if the proposed employment
is in the best interest of the youth and his health and safety will
not be adversely affected, the Director Administrator of the
Wage and Hour Division Bureau shall recommend that the Chief
Deputy Commissioner of the Department of Labor issue a
waiver for the youth. Absent a contrary determination by the
Chief Deputy Commissioner on the hardship to the youth or the
effect on the health and safety of the youth, the Chief Deputy
Commissioner shall issue the waiver for the youth.
(b) Any person adversely affected by a decision of the director
Administrator or Chief Deputy Commissioner may appeal the
decision by filing a written petition for a contested case hearing
with the Office of Administrative Hearings (OAH)pursuant to
the procedures contained in Article 3 of G.S. 150B. under
Chapter 150B, Article 3 of the North Carolina General Statutes.
Authority G.S. 95-25.5; 95-25.17.
13 NCAC 12 .0405 REVOCATION
(a) The Director Administrator of the Wage and Hour Division
Bureau or his designated representative shall review the issuance
of all youth employment certificates by county social services
directors. If upon review, or because of any other circumstance,
the Director Administrator determines a certificate has been
issued in violation of the youth employment provisions or the
rules and regulations promulgated thereunder, he shall notify the
youth, the county social service director and the employer of the
youth that the certificate is being revoked and shall specify the
reasons for the revocation.
(b) If the certificate is revoked, the employer shall cease to
employ the youth and shall return the certificate to the Director
Administrator of the Wage and Hour DivisionBureau or to the
county social service director, who shall forward it to the Wage
and Hour Director. Administrator.
(c) The employer or youth may object to the revocation by
filing a written petition for a contested case hearing with the
Office of Administrative Hearings (OAH) pursuant to the
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21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
476
procedures contained in Article 3 of Chapter 150B of the
General Statutes.under Chapter 150B, Article 3 of the North
Carolina General Statutes. Even if a petition for a hearing is
filed, the certificate must be returned and the employment must
cease pursuant to Paragraph (b) of this Rule.
Authority G.S. 95-25.5; 95-25.17.
13 NCAC 12 .0409 PARENTAL EXEMPTION
For purposes of the exemption listed in G.S. 95-25.5(i), a parent
is deemed to be a natural or adoptive parent.
Authority G.S. 95-25.5; 95-25.19.
TITLE 15A – DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES
Notice is hereby given in accordance with G.S. 150B-21.2 that
the Environmental Management Commission intends to amend
the rules cited as 15A NCAC 02D .0902, .0909, .1402, .1403.
Proposed Effective Date: January 1, 2007
Public Hearing:
Date: October 4, 2006
Time: 7:00 p.m.
Location: Charlotte-Mecklenburg Government Center,
Chamber Room CH-14, 600 East 14th Street, Charlotte, NC
28202
Reason for Proposed Action: To require reasonable available
control technology for volatile organic compounds and nitrogen
oxides in the counties in the Charlotte ozone nonattainment area
to meet EPA requirements for a complete State Implementation
Plan (SIP) submittal for the Charlotte ozone nonattainment SIP.
Procedure by which a person can object to the agency on a
proposed rule: Any person desiring to comment is requested to
submit a written statement for inclusion in the record of
proceedings at the public hearing. The hearing officer may limit
oral presentation lengths if many people want to speak. The
hearing record will remain open until November 14, 2006, to
receive additional written statements. To be included, the
statement must be received by the Division by November 14,
2006.
Comments may be submitted to: Thomas Allen, 1641 Mail
Service Center, Raleigh, NC 27699-1641, phone (919) 733-
1489, fax (919) 715-7476, email thom.allen@ncmail.net
Comment period ends: November 14, 2006
Procedure for Subjecting a Proposed Rule to Legislative
Review: If an objection is not resolved prior to the adoption of
the rule, a person may also submit written objections to the
Rules Review Commission. If the Rules Review Commission
receives written and signed objections in accordance with G.S.
150B-21.3(b2) from 10 or more persons clearly requesting
review by the legislature and the Rules Review Commission
approves the rule, the rule will become effective as provided in
G.S. 150B-21.3(b1). The Commission will receive written
objections until 5:00 p.m. on the day following the day the
Commission approves the rule. The Commission will receive
those objections by mail, delivery service, hand delivery, or
facsimile transmission. If you have any further questions
concerning the submission of objections to the Commission,
please call a Commission staff attorney at 919-733-2721.
Fiscal Impact: A copy of the fiscal note can be obtained from
the agency.
State
Local
Substantive (>$3,000,000)
None
CHAPTER 02 - ENVIRONMENTAL MANAGEMENT
SUBCHAPTER 02D - AIR POLLUTION CONTROL
REQUIREMENTS
SECTION .0900 - VOLATILE ORGANIC COMPOUNDS
15A NCAC 02D .0902 APPLICABILITY
(a) The rules in this Section do not apply except as specifically
set out in this Rule.
(b) Regardless of any other statement of applicability of this
Section, this Section does not apply to:
(1) sources whose emissions of volatile organic
compounds are not more than 15 pounds per
day, except that this Section does apply to the
manufacture and use of cutback asphalt and to
gasoline service stations or gasoline
dispensing facilities regardless of levels of
emissions of volatile organic compounds;
(2) sources whose emissions do not exceed 800
pounds of volatile organic compounds per
calendar month and that are:
(A) bench-scale, on-site equipment used
exclusively for chemical or physical
analysis for quality control purposes,
staff instruction, water or wastewater
analyses, or non-production
environmental compliance
assessments;
(B) bench-scale experimentation,
chemical or physical analyses,
training or instruction from not-for-profit,
non-production educational
laboratories;
(C) bench-scale experimentation,
chemical or physical analyses,
training or instruction from hospitals
or health laboratories pursuant to the
determination or diagnoses of illness;
or
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21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
477
(D) research and development laboratory
activities provided the activity
produces no commercial product or
feedstock material; or
(3) emissions of volatile organic compounds
during startup or shutdown operations from
sources which use incineration or other types
of combustion to control emissions of volatile
organic compounds whenever the off-gas
contains an explosive mixture during the
startup or shutdown operation if the exemption
is approved by the Director as meeting the
requirements of this Subparagraph.
(c) The following rules of this Section apply statewide:
(1) .0925, Petroleum Liquid Storage in Fixed Roof
Tanks, for fixed roof tanks at gasoline bulk
plants and gasoline bulk terminals;
(2) .0926, Bulk Gasoline Plants;
(3) .0927, Bulk Gasoline Terminals;
(4) .0928, Gasoline Service Stations Stage I;
(5) .0932, Gasoline Truck Tanks and Vapor
Collection Systems;
(6) 0933, Petroleum Liquid Storage in External
Floating Roof Tanks, for external floating roof
tanks at bulk gasoline plants and bulk gasoline
terminals;
(7) .0948, VOC Emissions from Transfer
Operations;
(8) .0949, Storage of Miscellaneous Volatile
Organic Compounds; and
(9) .0958, Work Practices for Sources of Volatile
Organic Compounds.
(d) Rule .0953, Vapor Return Piping for Stage II Vapor
Recovery, of this Section applies in Davidson, Durham, Forsyth,
Gaston, Guilford, Mecklenburg, Wake, Dutchville Township in
Granville County, and that part of Davie County bounded by the
Yadkin River, Dutchmans Creek, North Carolina Highway 801,
Fulton Creek and back to Yadkin River in accordance with
provisions set out in that Rule.
(e) All sources located in Mecklenburg County that were
required to comply with any of these Rules: Rules before July 5,
1995:
(1) .0917 through .0937 of this Section, or
(2) .0943 through .0945 of this Section, before
July 5, 1995, shall continue to comply with
those Rules.
shall continue to comply with those Rules.
(f) The rules in this Section apply to sources with the potential
to emit 100 tons or more volatile organic compounds per year in
the following areas:
(1) Cabarrus County
(2) Gaston County
(3) Lincoln County
(4) Mecklenburg County
(5) Rowan County
(6) Union County
(7) Davidson Township and Coddle Creek
Township in Iredell County
(f) If a violation of the ambient air quality standard for ozone is
measured in accordance with 40 CFR 50.9 in Cabarrus, Gaston,
Iredell, Lincoln, Mecklenburg, Rowan, or Union County, North
Carolina or York County, South Carolina, the Director shall
initiate analysis to determine the control measures needed to
attain and maintain the ambient air quality standard for ozone.
By the following May 1, the Director shall implement the
specific stationary source control measures contained in this
Section that are required as part of the control strategy necessary
to bring the area into compliance and to maintain compliance
with the ambient air quality standard for ozone. The Director
shall implement the rules in this Section identified as being
necessary by the analysis by notice in the North Carolina
Register. The notice shall identify the rules that are to be
implemented and shall identify whether the rules implemented
are to apply in Gaston or Mecklenburg County or in both
counties. At least one week before the scheduled publication
date of the North Carolina Register containing the Director's
notice implementing rules in this Section, the Director shall send
written notification to all permitted facilities within the county in
which the rules are being implemented that are or may be subject
to the requirements of this Section informing them that they are
or may be subject to the requirements of this Section. (For
Mecklenburg County, "Director" means for the purpose of
notifying permitted facilities in Mecklenburg County, the
Director of the Mecklenburg County local air pollution control
program.) Compliance shall be in accordance with Rule .0909
of this Section.
(g) If a violation of the ambient air quality standard for ozone is
measured in accordance with 40 CFR 50.9 in Davidson, Forsyth,
or Guilford County or that part of Davie County bounded by the
Yadkin River, Dutchmans Creek, North Carolina Highway 801,
Fulton Creek and back to Yadkin River, the Director shall
initiate analysis to determine the control measures needed to
attain and maintain the ambient air quality standard for ozone.
By the following May 1, the Director shall implement the
specific stationary source control measures contained in this
Section that are required as part of the control strategy necessary
to bring the area into compliance and to maintain compliance
with the ambient air quality standard for ozone. The Director
shall implement the rules in this Section identified as being
necessary by the analysis by notice in the North Carolina
Register. The notice shall identify the rules that are to be
implemented and shall identify whether the rules implemented
are to apply in Davidson, Forsyth, or Guilford County or that
part of Davie County bounded by the Yadkin River, Dutchmans
Creek, North Carolina Highway 801, Fulton Creek and back to
Yadkin River or any combination thereof. At least one week
before the scheduled publication date of the North Carolina
Register containing the Director's notice implementing rules in
this Section, the Director shall send written notification to all
permitted facilities within the county in which the rules are
being implemented that are or may be subject to the
requirements of this Section informing them that they are or may
be subject to the requirements of this Section. (For Forsyth
County, "Director" means for the purpose of notifying permitted
facilities in Forsyth County, the Director of the Forsyth County
local air pollution control program.) Compliance shall be in
accordance with Rule .0909 of this Section.
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21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
478
(h) If a violation of the ambient air quality standard for ozone is
measured in accordance with 40 CFR 50.9 in Durham or Wake
County or Dutchville Township in Granville County, the
Director shall initiate analysis to determine the control measures
needed to attain and maintain the ambient air quality standard
for ozone. By the following May 1, the Director shall
implement the specific stationary source control measures
contained in this Section that are required as part of the control
strategy necessary to bring the area into compliance and to
maintain compliance with the ambient air quality standard for
ozone. The Director shall implement the rules in this Section
identified as being necessary by the analysis by notice in the
North Carolina Register. The notice shall identify the rules that
are to be implemented and shall identify whether the rules
implemented are to apply in Durham or Wake County or
Dutchville Township in Granville County or any combination
thereof. At least one week before the scheduled publication date
of the North Carolina Register containing the Director's notice
implementing rules in this Section, the Director shall send
written notification to all permitted facilities within the county in
which the rules are being implemented that are or may be subject
to the requirements of this Section informing them that they are
or may be subject to the requirements of this Section.
Compliance shall be in accordance with Rule .0909 of this
Section.
(i) Sources whose emissions of volatile organic compounds are
not subject to limitation under this Section may still be subject to
emission limits on volatile organic compounds in Rules, .0524,
.1110, or .1111 of this Subchapter.
Authority G.S. 143-215.3(a)(1); 143-215.107(a)(5).
15A NCAC 02D .0909 COMPLIANCE SCHEDULES
FOR SOURCES IN NEW NONATTAINMENT AREAS
(a) Applicability. With the exceptions in Paragraph (b) of this
Rule, this Rule applies to all sources covered by Paragraphs (f),
(g) or (h) (e), (f), or (g) of Rule .0902 of this Section.
(b) Exceptions. This Rule does not apply to:
(1) sources in Mecklenburg County required to
comply with the requirements of this Section
under Rule .0902(c) .0902(e) of this Section;
(2) sources covered under Rule .0953 or .0954 of
this Section; or
(3) sources required to comply with the
requirements of this Section under Rule
.0902(a) .0902(c) of this Section.
(c) Maintenance areas. The owner or operator of any source
subject to this Rule because of the application of Paragraphs (g)
or (h) (e), (f), or (g) of Rule .0902 of this Section shall adhere to
the following increments of progress and schedules:
(1) if compliance is to be achieved by installing
emission control equipment, replacing process
equipment, or modifying existing process
equipment:
(A) A The owner or operator shall submit
a permit application and a compliance
schedule shall be submitted within six
months after the Director notices in
the North Carolina Register that an
area is in violation of the ambient air
quality standard for ozone;
(B) The compliance schedule shall
contain the following increments of
progress:
(i) a date by which contracts for
the emission control system
and process equipment shall
be awarded or orders shall
be issued for purchase of
component parts;
(ii) a date by which on-site
construction or installation
of the emission control and
process equipment shall
begin; and
(iii) a date by which on-site
construction or installation
of the emission control and
process equipment shall be
completed;
(C) Final compliance shall be achieved
within three years after the Director
notices in the North Carolina Register
that the area is in violation of the
ambient air quality standard for
ozone.
(2) if compliance is to be achieved by using low
solvent content coating technology:
(A) A The owner or operator shall submit
a permit application and a compliance
schedule shall be submitted within six
months after the Director notices in
the North Carolina Register that an
area is in violation of the ambient air
quality standard for ozone;
(B) The compliance schedule shall
contain the following increments:
(i) a date by which research and
development of low solvent
content coating shall be
completed if the Director
determines that low solvent
content coating technology
has not been sufficiently
researched and developed;
(ii) a date by which evaluation
of product quality and
commercial acceptance shall
be completed;
(iii) a date by which purchase
orders shall be issued for
low solvent content coatings
and process modifications;
(iv) a date by which process
modifications shall be
initiated; and
(v) a date by which process
modifications shall be
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21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
479
completed and use of low
solvent content coatings
shall begin;
(C) Final compliance shall be achieved
within three years after the Director
notices in the North Carolina Register
that the area is in violation of the
ambient air quality standard for
ozone.
(3) The owner or operator shall certify to the
Director within five days after each increment
deadline of progress in this Paragraph, whether
the required increment of progress has been
met.
(d) Nonattainment areas. The owner or operator of any source
subject to this Rule because of the application of Paragraph (f) of
Rule .0902 of this Section shall adhere to the following
increments of progress and schedules:
(1) if compliance is to be achieved by installing
emission control equipment, replacing process
equipment, or modifying existing process
equipment:
(A) The owner or operator shall submit a
permit application and a compliance
schedule by August 1, 2007;
(B) The compliance schedule shall
contain the following increments of
progress:
(i) a date by which contracts for
the emission control system
and process equipment shall
be awarded or orders shall
be issued for purchase of
component parts;
(ii) a date by which on-site
construction or installation
of the emission control and
process equipment shall
begin; and
(iii) a date by which on-site
construction or installation
of the emission control and
process equipment shall be
completed;
(C) Final compliance shall be achieved
no later than October 1, 2009.
(2) if compliance is to be achieved by using low
solvent content coating technology:
(A) The owner or operator shall submit a
permit application and a compliance
schedule by August 1, 2007;
(B) The compliance schedule shall
contain the following increments:
(i) a date by which research and
development of low solvent
content coating shall be
completed if the Director
determines that low solvent
content coating technology
has not been sufficiently
researched and developed;
(ii) a date by which evaluation
of product quality and
commercial acceptance shall
be completed;
(iii) a date by which purchase
orders shall be issued for
low solvent content coatings
and process modifications;
(iv) a date by which process
modifications shall be
initiated; and
(v) a date by which process
modifications shall be
completed and use of low
solvent content coatings
shall begin;
(C) Final compliance shall be achieved
no later than October 1, 2009.
(3) The owner or operator shall certify to the
Director within five days after the deadline, for
each increment of progress in this Paragraph,
whether the required increment of progress has
been met.
(d) The owner or operator shall certify to the Director within
five days after the deadline, for each increment of progress in
Paragraph (c) of this Rule, whether the required increment of
progress has been met.
(e) If the Director requires a test to demonstrate that compliance
has been achieved achieved, the owner or operator of sources
subject to this Rule shall conduct a test and submit a final test
report within six months after the stated date of final
compliance.
(f) The owner or operator of any new source of volatile organic
compounds not in existence or under construction as of the date
that the Director notices in the North Carolina Register in
accordance with Paragraphs (e), (f), or (g) of Rule .0902 of this
Section that the area is in violation of the ambient air quality
standard for ozone, shall comply with all applicable rules in this
Section upon start-up of the source.
(g)(f) Sources already in compliance.
(1) Maintenance Areas. Paragraph Paragraphs (c)
and (d) of this Rule shall not apply to sources
that are in compliance with applicable rules of
this Section when the Director notices in the
North Carolina Register that the area is in
violation of the ambient air quality standard
for ozone and that have determined and
certified compliance to the satisfaction of the
Director within six months after the Director
notices in the North Carolina Register that the
area is in violation.
(2) Nonattainment areas. Paragraphs (d) of this
Rule shall not apply to sources in an area
named in Paragraph (f) of Rule .0902 of this
Section that are in compliance with applicable
rules of this Section on January 1, 2007.
(g) New sources.
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21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
480
(1) Maintenance areas. The owner or operator of
any new source of volatile organic compounds
not in existence or under construction before
the date that the Director notices in the North
Carolina Register in accordance with
Paragraphs (g) or (h) of Rule .0902 of this
Section that the area is in violation of the
ambient air quality standard for ozone, shall
comply with all applicable rules in this Section
upon start-up of the source.
(2) Nonattainment areas. The owner or operator of
any new source of volatile organic compounds
not in existence or under construction before
January 1, 2007 shall comply with all
applicable rules in this Section upon start-up
of the source.
Authority G.S. 143-215.3(a)(1); 143-215.107(a)(5).
SECTION .1400 – NITROGEN OXIDES
15A NCAC 02D .1402 APPLICABILITY
(a) The rules in this Section do not apply except as specifically
set out in this Rule.
(a)(b) The requirements of this Section shall apply to all sources
May 1 through September 30 of each year.
(b)(c) Rules .1409(b) and.1416 through .1423 of this Section
apply statewide.
(d) The Rules .1407 through .1409 and .1413 of this Section
apply to sources with the potential to emit 100 ton or more
nitrogen oxides per year in the following areas:
(1) Cabarrus County
(2) Gaston County
(3) Lincoln County
(4) Mecklenburg County
(5) Rowan County
(6) Union County
(7) Davidson Township and Coddle Creek
Township in Iredell County
(c) Rules .1407, .1408, .1409(a), and .1413 of this Section apply
to sources identified according to Paragraph (d) of this Rule.
(d) With the exceptions stated in Paragraph (h) of this Rule, this
Section shall apply to:
(1) Charlotte/Gastonia, consisting of Mecklenburg
and Gaston Counties according to Paragraph
(e) of this Rule;
(2) Greensboro/Winston-Salem/High Point,
consisting of Davidson, Forsyth, and Guilford
Counties and the part of Davie County
bounded by the Yadkin River, Dutchmans
Creek, North Carolina Highway 801, Fulton
Creek and back to Yadkin River according to
Paragraph (f) of this Rule; or
(3) Raleigh/Durham, consisting of Durham and
Wake Counties and Dutchville Township in
Granville County according to Paragraph (g)
of this Rule.
(e) If a violation of the ambient air quality standard for ozone is
measured according to 40 CFR 50.9 in Cabarrus, Gaston, Iredell,
Lincoln, Mecklenburg, Rowan, or Union County, North Carolina
or York County, South Carolina, the Director shall initiate
analysis to determine the control measures needed to attain and
maintain the ambient air quality standard for ozone. By the
following May 1, the Director shall implement the specific
stationary source control measures contained in this Section that
are required as part of the control strategy necessary to bring the
area into compliance and to maintain compliance with the
ambient air quality standard for ozone. The Director shall
implement the rules in this Section identified as necessary by the
analysis by notice in the North Carolina Register. The notice
shall identify the rules that are to be implemented and shall
identify whether the rules implemented are to apply in Gaston or
Mecklenburg County or in both counties. At least one week
before the scheduled publication date of the North Carolina
Register containing the Director's notice implementing rules in
this Section, the Director shall send written notification to all
permitted facilities within the county in which the rules are
being implemented that are or may be subject to the
requirements of this Section informing them that they are or may
be subject to the requirements of this Section. (For Mecklenburg
County, "Director" means for the purpose of notifying permitted
facilities in Mecklenburg County, the Director of the
Mecklenburg County local air pollution control program.)
Compliance shall be according to Rule .1403 of this Section.
(f)(e) If a violation of the ambient air quality standard for ozone
is measured according to 40 CFR 50.9 in Davidson, Forsyth, or
Guilford County or that part of Davie County bounded by the
Yadkin River, Dutchmans Creek, North Carolina Highway 801,
Fulton Creek and back to Yadkin River, the Director shall
initiate analysis to determine the control measures needed to
attain and maintain the ambient air quality standard for ozone.
By the following May 1, the Director shall implement the
specific stationary source control measures contained in this
Section that are required as part of the control strategy necessary
to bring the area into compliance and to maintain compliance
with the ambient air quality standard for ozone. The Director
shall implement the rules in this Section identified as necessary
by the analysis by notice in the North Carolina Register. The
notice shall identify the rules that are to be implemented and
shall identify whether the rules implemented are to apply in
Davidson, Forsyth, or Guilford County or that part of Davie
County bounded by the Yadkin River, Dutchmans Creek, North
Carolina Highway 801, Fulton Creek and back to Yadkin River
or any combination thereof. At least one week before the
scheduled publication date of the North Carolina Register
containing the Director's notice implementing rules in this
Section, the Director shall send written notification to all
permitted facilities within the county in which the rules are
being implemented that are or may be subject to the
requirements of this Section informing them that they are or may
be subject to the requirements of this Section. (For Forsyth
County, "Director" means for the purpose of notifying permitted
facilities in Forsyth County, the Director of the Forsyth County
local air pollution control program.) Compliance shall be
according to Rule .1403 of this Section.
(g)(f) If a violation of the ambient air quality standard for ozone
is measured according to 40 CFR 50.9 in Durham or Wake
County or Dutchville Township in Granville County, the
PROPOSED RULES
21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
481
Director shall initiate analysis to determine the control measures
needed to attain and maintain the ambient air quality standard
for ozone. By the following May 1, the Director shall implement
the specific stationary source control measures contained in this
Section that are required as part of the control strategy necessary
to bring the area into compliance and to maintain compliance
with the ambient air quality standard for ozone. The Director
shall implement the rules in this Section identified as necessary
by the analysis by notice in the North Carolina Register. The
notice shall identify the rules that are to be implemented and
shall identify whether the rules implemented are to apply in
Durham or Wake County or Dutchville Township in Granville
County or any combination thereof. At least one week before the
scheduled publication date of the North Carolina Register
containing the Director's notice implementing rules in this
Section, the Director shall send written notification to all
permitted facilities within the county in which the rules are
being implemented that are or may be subject to the
requirements of this Section informing them that they are or may
be subject to the requirements of this Section. Compliance shall
be in according to Rule .1403 of this Section.
(h)(g) Regardless of any other statement of applicability of this
Section, thisThis Section does not apply to any:
(1) source not required to obtain an air permit
under 15A NCAC 02Q .0102 or is an
insignificant activity as defined at 15A NCAC
02Q .0103(19);
(2) incinerator or thermal or catalytic oxidizer
used primarily for the control of air pollution;
(3) emergency generator;
(4) emergency use internal combustion engine;
(5) source that is not covered under Rules .1416,
.1417, or .1418, and that is at a facility with a
federally enforceable potential to emit nitrogen
oxides of:
(A) less than 100 tons per year; and
(B) less than 560 pounds per calendar day
beginning May 1 through September
30 of any year.
(6) stationary internal combustion engine less
than 2400 brake horsepower that operates no
more than the following hours between May 1
and September 30:
(A) for diesel engines:
t = 833,333/ ES
(B) for natural gas-fired engines:
t = 700,280 / ES
where t equals time in hours and ES
equals engine size in horsepower.
This exemption shall not apply to any of the
sources listed in Rules .1417(a)(1) or (2) or
.1417(b) of this Section except that it shall
apply to:
(7) stationary combustion turbine constructed
before January 1, 1979, that has a federally
enforceable permit that restricts:
(A) its potential emissions of nitrogen
oxides to no more than 25 tons
between May 1 and September 30;
(B) it to burning only natural gas or oil;
and
(C) its hours of operation as described in
40 CFR 96.4 (b) (1)(ii) and (iii).
Authority G.S. 143-215.3(a)(1); 143-215.107(a)(5), (7), (10).
15A NCAC 02D .1403 COMPLIANCE SCHEDULES
(a) Applicability. This Rule applies to sources as set out in
covered by Paragraph (d), (f), or (g) of Rule .1402 of this
Section.
(b) Maintenance areas. The owner or operator of a source
subject to this Rule because of the applicability of Paragraphs
(e), (f), Paragraph (f) or (g) of Rule .1402 of this Section, shall
adhere to the following: following increments of progress and
schedules:
(1) If compliance with this Section is to be
achieved through a demonstration to certify
compliance without source modification:
(A) The owner or operator shall notify the
Director in writing within six months
after the Director's notice in the North
Carolina Register that the source is in
compliance with the applicable
limitation or standard;
(B) The owner or operator shall perform
any required testing, according to
Rule .1415 of this Section, within 12
months after the Director's notice in
the North Carolina Register to
demonstrate compliance with the
applicable limitation; and
(C) The owner or operator shall
implement any required
recordkeeping and reporting
requirements, according to Rule
.1404 of this Section, within 12
months after the Director's notice in
the North Carolina Register to
demonstrate compliance with the
applicable limitation.
(2) If compliance with this Section is to be
achieved through the installation of
combustion modification technology or other
source modification:
(A) The owner or operator shall submit a
permit application and a compliance
schedule within six months after the
Director's notice in the North
Carolina Register.
(B) The compliance schedule shall
contain the following increments of
progress:
(i) a date by which contracts for
installation of the
modification shall be
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21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
482
awarded or orders shall be
issued for purchase of
component parts;
(ii) a date by which installation
of the modification shall
begin;
(iii) a date by which installation
of the modification shall be
completed; and
(iv) if the source is subject to a
limitation, a date by which
compliance testing shall be
completed.
(C) Final compliance shall be achieved
within three years after the Director's
notice in the North Carolina Register
unless the owner or operator of the
source petitions the Director for an
alternative limitation according to
Rule .1412 of this Section. If such a
petition is made, final compliance
shall be achieved within four years
after the Director's notice in the North
Carolina Register.
(3) If compliance with this Section is to be
achieved through the implementation of an
emissions averaging plan as provided for in
Rule .1410 of this Section:
(A) The owner or operator shall abide by
the applicable requirements of
Subparagraphs (b)(1) or (b)(2) of this
Rule for certification or modification
of each source to be included under
the averaging plan;
(B) The owner or operator shall submit a
plan to implement an emissions
averaging plan according to Rule
.1410 of this Section within six
months after the Director's notice in
the North Carolina Register.
(C) Final compliance shall be achieved
within one year after the Director's
notice in the North Carolina Register
unless implementation of the
emissions averaging plan requires the
modification of one or more of the
averaging sources. If modification of
one or more of the averaging sources
is required, final compliance shall be
achieved within three years.
(4) If compliance with this Section is to be
achieved through the implementation of a
seasonal fuel switching program as provided
for in Rule .1411 of this Section:
(A) The owner or operator shall make all
necessary modifications according to
Subparagraph (b)(2) of this Rule.
(B) The owner or operator shall include a
plan for complying with the
requirements of Rule .1411 of this
Section with the permit application
required under Part (A) of this
Subparagraph.
(C) Final compliance shall be achieved
within three years after the Director's
notice in the North Carolina Register.
(5) Increments of progress certification. The
owner or operator shall certify to the Director,
within five days after the deadline for each
increment deadline of progress in this
Paragraph, whether the required increment of
progress has been met.
(c) Schedule for utility companies. The owner or operator of a
source subject to this Rule because of Rule .1416 of this Section
shall:
(1) submit to the Director before October 1, 2003,
a description of how the source will comply,
which shall include an estimate of the number
of tons of nitrogen oxides per ozone season,
which may be a range, that will be obtained
from the nitrogen oxide budget trading
program under Rule .1419 of this Section to
show compliance;
(2) submit to the Director a permit application,
following the schedules in 15A NCAC 02Q
.0312, .0313, .0525, or .0527, as applicable, to
receive a permit and make the modification or
construct and begin operating the control
device before the final compliance dates in
Rule .1416 of this Section if a permit is needed
for source modifications or control device
installation or modification; and
(3) install and implement any required monitoring,
recordkeeping, and reporting requirements
before May 1, 2004; if a permit application is
necessary to install and operate the monitor,
the permit application shall be submitted by
October 1, 2003; if a permit application is not
submitted, the Director shall modify the
source's permit by January 1, 2004, to insert
the monitoring, recordkeeping, and reporting
requirements necessary to show compliance
with this Section.
(d) Schedule for large combustion sources. The owner or
operator of a source subject to this Rule because of Rules
.1409(b) or .1417 of this Section shall:
(1) submit to the Director before October 1, 2003,
a description of how the source will comply,
which shall include an estimate of the number
of tons of nitrogen oxides per ozone season,
which may be a range, that will be obtained
from the nitrogen oxide budget trading
program under Rule .1419 of this Section to
show compliance;
(2) submit to the Director a permit application,
following the schedules in 15A NCAC 02Q
.0312, .0313, .0525, or .0527, as applicable, to
receive a permit and make the modification or
PROPOSED RULES
21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
483
construct and begin operating the control
device before the final compliance dates in
Rules .1409(b) or .1417 of this Section if a
permit is needed for source modifications or
control device installation or modification;
(3) install and implement any required monitoring,
recordkeeping, and reporting requirements
before May 1, 2004; if a permit application is
necessary to install and operate the monitor,
the permit application shall be submitted by
October 1, 2003; if a permit application is not
submitted, the Director shall modify the
source's permit by January 1, 2004, to insert
the monitoring, recordkeeping, and reporting
requirements necessary to show compliance
with this Section.
(c) Nonattainment areas. The owner or operator of a source
subject to this Rule because of the applicability of Paragraph (d)
of Rule .1402 of this Section, shall adhere to the following:
(1) If compliance with this Section is to be
achieved through a demonstration to certify
compliance without source modification:
(A) The owner or operator shall notify the
Director in writing by August 1,
2007;
(B) The owner or operator shall perform
any required testing, according to
Rule .1415 of this Section, by January
1, 2008; and
(C) The owner or operator shall
implement any required
recordkeeping and reporting
requirements, according to Rule
.1404 of this Section, by January 1,
2008.
(2) If compliance with this Section is to be
achieved through the installation of
combustion modification technology or other
source modification:
(A) The owner or operator shall submit a
permit application and a compliance
schedule by August 1, 2007;
(B) The compliance schedule shall
contain the following increments of
progress:
(i) a date by which contracts for
installation of the
modification shall be
awarded or orders shall be
issued for purchase of
component parts;
(ii) a date by which installation
of the modification shall
begin;
(iii) a date by which installation
of the modification shall be
completed; and
(iv) if the source is subject to a
limitation, a date by which
compliance testing shall be
completed.
(C) Final compliance shall be achieved
no later than October 1, 2009.
(3) If compliance with this Section is to be
achieved through the implementation of an
emissions averaging plan as provided for in
Rule .1410 of this Section:
(A) The owner or operator shall abide by
the applicable requirements of
Subparagraphs (c)(1) or (c)(2) of this
Rule for certification or modification
of each source to be included under
the averaging plan;
(B) The owner or operator shall submit a
plan to implement an emissions
averaging plan according to Rule
.1410 of this Section by August 1,
2007;
(C) Final compliance shall be achieved
within one year no later than January
1, 2008.
(4) If compliance with this Section is to be
achieved through the implementation of a
seasonal fuel switching program as provided
for in Rule .1411 of this Section:
(A) The owner or operator shall make all
necessary modifications according to
Subparagraph (c)(2) of this Rule;
(B) The owner or operator shall include a
plan for complying with the
requirements of Rule .1411 of this
Section with the permit application
required under Part (A) of this
Subparagraph;
(C) Final compliance shall be achieved
no later than October 1, 2009.
(5) Increments of progress certification. The
owner or operator shall certify to the Director,
within five days after the deadline for each
increment of progress in this Paragraph,
whether the required increment of progress has
been met.
(d) Sources already in compliance.
(1) Maintenance Areas. Paragraph (b) of this Rule
shall not apply to sources that are in
compliance with applicable rules of this
Section when the Director notices in the North
Carolina Register that the area is in violation
of the ambient air quality standard for ozone
and that have determined and certified
compliance to the satisfaction of the Director
within six months after the Director notices in
the North Carolina Register that the area is in
violation.
(2) Nonattainment areas. Paragraph (c) of this
Rule shall not apply to sources in an area
named in Paragraph (d) of Rule .1402 of this
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21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
484
Section that are in compliance with applicable
rules of this Section on January 1, 2007.
(e) New sources.
(1) Maintenance areas. The owner or operator of
any new source of nitrogen oxides not
permitted as of before the date the Director
notices in the North Carolina Register
according to Paragraphs (e), (f), Paragraph (f)
or (g) of Rule .1402 of this Section, shall
comply with all applicable rules in this Section
upon start-up of the source. The owner or
operator of any new source covered under
Rules .1407, .1408, .1409, .1413, or .1418 of
this Section shall comply with all applicable
rules in this Section upon start-up of the
source.
(2) Nonattainment areas. The owner or operator of
any new source of nitrogen oxides not
permitted before January 1, 2008 in an area
identified in Paragraph (d) of Rule .1402 of
this Section, shall comply with all applicable
rules in this Section upon start-up of the
source.
Authority G.S. 143-215.3(a)(1); 143-215.65; 143-215.107(a)(5),
(7), (10).
TITLE 16 – DEPARTMENT OF PUBLIC EDUCATION
Notice is hereby given in accordance with G.S. 150B-21.2 that
the State Board of Education intends to adopt the rule cited as
16 NCAC 06H .0112.
Proposed Effective Date: January 2, 2007
Public Hearing:
Date: October 6, 2006
Time: 1:00 p.m.
Location: Room 224 South, Education Bldg., 301 S.
Wilmington St., Raleigh, NC
Reason for Proposed Action: Rule is needed to comply with
the McKinney-Vento Homeless Education Assistance
Improvements Act of 2001.
Procedure by which a person can object to the agency on a
proposed rule: Persons may submit objections regarding the
proposed rule to Harry E. Wilson, Staff Attorney, State Board of
Education, 6302 Mail Service Center, Raleigh, NC 27699-6302.
Comments may be submitted to: Harry E. Wilson, 6302 Mail
Service Center, Raleigh, NC 27699-6302, phone (919) 807-
3406, fax (919) 807-3198, email hwilson@dpi.state.nc.us
Comment period ends: November 14, 2006
Procedure for Subjecting a Proposed Rule to Legislative
Review: If an objection is not resolved prior to the adoption of
the rule, a person may also submit written objections to the
Rules Review Commission. If the Rules Review Commission
receives written and signed objections in accordance with G.S.
150B-21.3(b2) from 10 or more persons clearly requesting
review by the legislature and the Rules Review Commission
approves the rule, the rule will become effective as provided in
G.S. 150B-21.3(b1). The Commission will receive written
objections until 5:00 p.m. on the day following the day the
Commission approves the rule. The Commission will receive
those objections by mail, delivery service, hand delivery, or
facsimile transmission. If you have any further questions
concerning the submission of objections to the Commission,
please call a Commission staff attorney at 919-733-2721.
Fiscal Impact:
State
Local
Substantive (>$3,000,000)
None
CHAPTER 06 - ELEMENTARY AND SECONDARY
EDUCATION
SUBCHAPTER 06H - FEDERAL PROGRAMS
16 NCAC 06H .0112 DISPUTE RESOLUTION
PROCESS FOR HOMELESS STUDENTS
(a) As used in this Rule:
(1) The terms "homeless," "homeless child," and
"homeless student" shall mean the same as the
term "homeless children and youth" as defined
by 42 U.S.C. § 11435(2). These terms shall
also be deemed to include the term
"unaccompanied youth."
(2) The term "unaccompanied youth" shall mean
the same as defined by 42 U.S.C. § 11435(6).
(b) Each LEA shall appoint a liaison for homeless students. The
LEA shall train the LEA liaison to carry out and mediate the
dispute resolution process as expeditiously as possible and to
ensure that each school and the LEA meets the requirements of
the McKinney-Vento Homeless Education Assistance
Improvements Act of 2001. The LEA liaison shall also ensure
that each unaccompanied youth and any student who meets the
definition of "homeless children and youth" as defined by 42
U.S.C. § 11435(2) is enrolled immediately in the school pending
resolution of the dispute. The burden shall be on the school or
LEA to show that the student is not a homeless student or
unaccompanied youth.
(c) Each LEA shall develop and implement a process for parents,
guardians, or unaccompanied youth who have complaints about
enrollment to file an appeal to the LEA liaison upon registering,
or attempting or register, at the school. Enrollment shall be
deemed to include attending classes and participating fully in
school activities. The appeal process shall provide that:
(1) faculty and staff of the school who know about
the complaint must refer the child, youth,
parent, or guardian to the LEA liaison;
PROPOSED RULES
21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
485
(2) the LEA liaison shall expeditiously carry out
the dispute resolution process;
(3) pending resolution of any complaint between
the school or LEA and the parent, guardian, or
unaccompanied youth over school enrollment,
the LEA shall enroll the child or youth
immediately in the school in which the child or
youth seeks enrollment;
(4) the LEA shall provide the student with all the
services for which the student is eligible and
shall permit the student to participate fully in
school activities while the dispute is being
resolved;
(5) the LEA shall provide the parent, guardian, or
unaccompanied youth who makes a complaint
to the LEA liaison with a written statement of
the rights and procedures, in language the
parent, guardian, or unaccompanied youth can
understand, that informs them of:
(A) contact information including
telephone number and address of the
LEA liaison and of the State
coordinator for homeless education,
with a brief description of their roles;
(B) the right to initiate the dispute
resolution process either orally or in
writing;
(C) a simple form that parents, guardians,
or unaccompanied youth can
complete and submit to the LEA
liaison to initiate the dispute
resolution process;
(D) a step-by-step description of how to
dispute the school's decision;
(E) notice of the right to enroll
immediately in the school of choice
or remain in the school of origin with
transportation provided pending
resolution of the dispute;
(F) notice that immediate enrollment
includes full participation in all
school activities; and
(G) notice of the right to obtain assistance
of advocates or attorneys.
(6) provides the parent, guardian, or
unaccompanied youth with the name and
contact information of the State coordinator
for homeless education; and
(7) informs the parent, guardian, or
unaccompanied youth about the right to appeal
any decision regarding the student's enrollment
to the State coordinator.
(d) Each LEA shall include in the dispute resolution process the
following components:
(1) The LEA shall allow the parent, guardian, or
unaccompanied youth to initiate the dispute
resolution process at the school at which
enrollment is sought or at the LEA liaison's
office.
(2) The LEA shall inform the parent, guardian, or
unaccompanied youth of the right to provide
supporting written or oral documentation.
(3) The LEA shall inform the parent, guardian, or
unaccompanied youth of the right to seek the
assistance of advocates or attorneys.
(4) The LEA shall provide the parent, guardian, or
unaccompanied youth with a written statement
of the final LEA decision.
(5) The LEA shall inform the parent, guardian, or
unaccompanied youth of the right to appeal the
final LEA decision to the State coordinator.
(e) The Superintendent of Public Instruction shall designate a
State coordinator for homeless education.
(f) Any parent, guardian, or unaccompanied youth who is not
satisfied with the final LEA decision regarding enrollment may
appeal the decision to the State coordinator. In addition, any
interested person who believes that grounds for an appeal exist
may present an oral or written appeal to the State coordinator,
including:
(1) the name, address, and telephone number of
the person filing the appeal;
(2) the relationship or connection of the person to
the child in question;
(3) the name of the school system and the specific
school in question;
(4) the federal requirement alleged to have been
violated;
(5) how the requirement has been violated; and
(6) the relief the person is seeking.
(g) If the State coordinator receives an appeal that is not
complete, the coordinator shall contact the person making the
appeal, explain the deficiency, and offer the person the
opportunity to complete the appeal.
(h) Upon request of the State coordinator, the LEA liaison shall
provide the State coordinator with the record of the complaint
and the LEA's actions. If the matter involves more than one
LEA, then the LEA liaisons shall cooperate to provide the State
coordinator with a complete record. In either event, the liaison or
liaisons shall provide the complete record within five school
days following the State coordinator's request.
(i) The LEA shall provide the State coordinator with any
information that the State coordinator requests regarding the
issues presented in the appeal.
(j) The State coordinator shall provide the LEA and the parent,
guardian, or unaccompanied youth with the opportunity to
respond to the LEA decision and to provide any additional
evidence they deem relevant.
(k) The State Coordinator shall issue a final written decision to
the parent, guardian, or unaccompanied youth and the LEA
involved within 10 school days following receipt of the complete
appeal.
(l) The State coordinator's decision shall include:
(1) a summary of the issue appealed;
(2) the federal requirement at issue; and
(3) a description of the State coordinator's
decision in plain language.
(m) Nothing contained in this Rule shall prohibit the State
coordinator from investigating whether the parent, guardian, or
PROPOSED RULES
21:06 NORTH CAROLINA REGISTER SEPTEMBER 15, 2006
486
unaccompanied youth knowingly and voluntarily entered into
any agreement affecting their rights under McKinney-Vento
Homeless Education Assistance Improvements Act of 2001. If
the coordinator determines that the parent, guardian, or
unaccompanied youth did not knowingly and voluntarily enter
into the agreement, then the coordinator may void the agreement
and enter a decision consistent with the applicable facts and law.
Authority G.S. 150B-21; 115C-12; 42 U.S.C. § 11432.
TITLE 21 –OCCUPATIONAL LICENSING BOARDS AND
COMMISSIONS
CHAPTER 57 – REAL ESTATE APPRAISAL BOARD
Notice is hereby given in accordance with G.S. 150B-21.2 that
the North Carolina Appraisal Board intends to adopt the rule
cited as 21 NCAC 57A .0211 and amend the rules cited as 21
NCAC 57A .0201, .0203 - .0204, .0206, .0209 - .0210, .0302,
.0405, .0407; 57B .0102 - .0103, .0210, .0304, .0306, .0603 -
.0604, .0606, .0611.
Proposed Effective Date: March 1, 2007
Public Hearing:
Date: November 14, 2006
Time: 9:00 a.m.
Location: 5830 Six Forks Road, Raleigh, NC 27609
Reason for Proposed Action: Most changes are clarifications
of existing rules to reflect current practice. 21 NCAC 57A .0211
is proposed for adoption to establish a process for nonresident
licensing through reciprocity with other states or by application
if North Carolina does not have a reciprocal agreement with the
applicant's resident state.
Procedure by which a person can object to the agency on a
proposed rule: File written comments before November 15,
2006. Attend the public hearing on November 14, 2006. Email
the rulemaking coordinator at Roberta@ncab.org.
Comments may be submitted to: Roberta Ouellette, 5830 Six
Forks Road, Raleigh, NC 27609, phone (919) 870-4854, fax
(919) 870-4859, email roberta@ncab.org
Comment period ends: November 15, 2006
Procedure for Subjecting a Proposed Rule to Legislative
Review: If an objection is not resolved prior to the adoption of
the rule, a person may also submit written objections to the
Rules Review Commission. If the Rules Review Commission
receives written and signed objections in accordance with G.S.
150B-21.3(b2) from 10 or more persons clearly requesting
review by the legislature and the Rules Review Commission
approves the rule, the rule will become effective as provided in
G.S. 150B-21.3(b1). The Commission will receive written
objections until 5:00 p.m. on the day following the day the
Commission approves the rule. The Commission will receive
those objections by mail, delivery service, hand delivery, or
facsimile transmission. If you have any further questions
concerning the submission of objections to the Commission,
please call a Commission staff attorney at 919-733-2721.
Fiscal Impact:
State
Local
Substantive (>$3,000,000)
None
SUBCHAPTER 57A - REGISTRATION LICENSING,
CERTIFICATION AND PRACTICE
SECTION .0200 – TRAINEE REGISTRATION,
APPRAISER LICENSING AND CERTIFICATION
21 NCAC 57A .0201 QUALIFICATIONS FOR
TRAINEE REGISTRATION, APPRAISER LICENSURE
AND CERTIFICATION
(a) Applicants for trainee registration, licensure as a licensed
residential real estate appraiser and certification as a certified
real estate appraiser must satisfy the qualification requirements
stated in G.S. 93E-1-6 as further set forth in Subparagraphs
(a)(1), (a)(2), (a)(3), and (a)(4) of this Rule, provided however
that registration as a trainee or licensure as a licensed residential
real estate appraiser is not prerequisite for certification as a
certified residential or general real estate appraiser: appraiser.
All prelicensing or precertification education must have been
obtained in a classroom setting. No credit will be given for
courses taken by any other method, such as correspondence
school courses or computer based courses.
(1) Applicants for trainee registration shall have
completed, within the five-year period
immediately preceding the date application is
made, 90 hours of education in the areas of
Introduction to Real Estate Appraisal,
Valuation Principles and Practices, Applied
Residential Property Valuation, and, effective
January 1, 2003, and the Uniform Standards of
Professional Appraisal Practice (USPAP) or
appraisal education found by the Board to be
equivalent to such courses.
(2) Applicants for licensure as a licensed
residential real estate appraiser shall have
completed, within the five-year period
immediately preceding the date application is
made, 90 hours of education as set forth in
Subparagraph (a)(1) of this Rule, and shall
have obtained at least 2,000 hours of appraisal
experience acquired within the five-year
period immediately preceding the date
application is made and over a minimum
period of 18 calendar months. Applicants must
have been actively engaged in real estate
appraising for at least 18 months prior to the
date application is made.
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487
(3) Applicants for certification as a certified
residential real estate appraiser shall have
completed those courses required for
registration as a trainee or licensure as a
licensed residential real estate appraiser or
equivalent education and, in addition, within
the five-year period immediately preceding the
date application is made, a course in
Introduction to Income Property Appraisal
consisting of at least 30 classroom hours of
instruction or equivalent education; education,
and the 15 hour National USPAP course; and
shall have obtained at least 2,500 hours of
appraisal experience acquired within the five-year
period immediately preceding the date
application is made and over a minimum
period of two calendar years. Applicants must
have been actively engaged in real estate
appraising for at least two calendar years prior
to the date application is made. At least 50
percent of this appraisal experience must have
been of one to four family residential
properties in which the sales comparison
approach was utilized in the appraisal process.
(4) Applicants for certification as a certified
general real estate appraiser shall have
completed those courses required for
certification as a certified residential real estate
appraiser or equivalent education and, in
addition, within the five-year period
immediately preceding the date application is
made, courses in Advanced Income
Capitalization Procedures and Applied Income
Property Valuation each consisting of at least
30 classroom hours of instruction or equivalent
education;education, and the 15 hour National
USPAP course; and shall have obtained at
least 3,000 hours of appraisal experience
acquired within the five-year period
immediately preceding the date application is
made and over a minimum period of two and a
half calendar years of which at least 50 percent
must have been in appraising non-residential
real estate. Applicants must have been
actively engaged in real estate appraising for at
least two and one-half calendar years prior to
the date application is made. At least 50
percent of the non-residential appraisal
experience must have been of complex
properties or of improved properties in which
the income approach was utilized in the
appraisal process.
(b) Applicants for licensure or certification must submit a
complete copy of their appraisal log and may be required to
provide to the Board copies of appraisal reports in support of
experience credit. All